Borked

ED: This is BackStory. I’m Ed Ayers. On Thursday, a short-handed Supreme Court deadlocked on President Obama’s immigration plan. The president had sharp words for Senate Republicans who are refusing to consider his Supreme Court nominee.

BARACK OBAMA: They are allowing partisan politics to jeopardize something as fundamental as the impartiality and integrity of our justice system.

ED: This is hardly the first time the high court has been embroiled in partisanship. Consider 1937 when Franklin Roosevelt tried to add six extra justices.

JEFF SHESOL: There was total political chaos. Nothing else happened in Washington, except that they argued about this court-packing plan.

ED: Today on BackStory, we’re exploring the history of partisan politics and the Supreme Court. From impeaching a justice in the early republic to blocking C-SPAN, the Supreme Court has always struggled to stay above the fray. Politics and the Supreme Court, today on BackStory.

PETER: Major funding for BackStory is provided by the Shiocan Foundation, the National Endowment for the Humanities, the Joseph and Robert Cornell Memorial Foundation, and the Arthur Vining Davis Foundations.

ED: From the Virginia Foundation for the Humanities, this is BackStory with the American Backstory hosts. Welcome to the show. I’m Ed Ayers, here with Peter Onuf.

PETER: Hey there, Ed.

ED: And Brian Balogh.

BRIAN: Hi, Ed. We’re going to start off today with this breaking news from NBC on June 26, 1987.

TOM BROKAW: Good evening. Justice Lewis Powell, a courtly southerner, surprised almost everyone today by announcing his retirement from the US Supreme Court. His decision touched–

BRIAN: Any Supreme Court vacancy grabs headlines. But Powell’s announcement was particularly significant because of the role he played on an ideologically divided court.

MALE SPEAKER: Whether voting conservative, as President Nixon hoped when he appointed him, or liberal, Powell has been the so-called swing vote.

BRIAN: President Reagan’s pick to fill Justice Powell’s seat was conservative judge Robert Bork. This enraged some Senate Democrats, who feared Bork would move the Court and the law of the land decisively to the right.

EDWARD KENNEDY: Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters.

BRIAN: This is Senator Edward Kennedy, speaking out against Bork’s nomination less than an hour after it was announced.

EDWARD KENNEDY: And schoolchildren could not be taught about evolution.

NINA TOTENBERG: And what it did was it froze things.

BRIAN: That’s NPR Legal Affairs Correspondent Nina Totenberg.

NINA TOTENBERG: Politicians went, I’m not sure I want to get way out in front of this. I think I’ll just wait. In the meantime, Kennedy, who was an incredibly hard worker, started working the phones to make sure that happened, talking to leading interest group people, talking to moderate Republicans.

JEFFREY ROSEN: And it just was a constitutional drama, unlike any we’ve ever seen before.

BRIAN: Jeffrey Rosen is president of the National Constitution Center. In the summer of 1987, he interned for Senate Judiciary Committee Chair Joseph Biden. This gave him a front row seat for the Bork drama.

JEFFREY ROSEN: There had been contested hearings before.

NINA TOTENBERG: But this was the first one in modern memory when, out and out, front and center, there was an ideological fight.

JEFFREY ROSEN: Bork had been an extremely prolific and opinionated scholar who’d expressed views about all the most contested issues about constitutional law.

NINA TOTENBERG: He had opposed the public accommodations provisions of the Civil Rights Act.

JEFFREY ROSEN: He questioned landmarks of the Warren and Burger eras, including, most notably, the Griswold decision creating a constitutional right to privacy.

NINA TOTENBERG: He had written a lot of things that were considered just unacceptable to large numbers of people and not just liberal Democrats.

BRIAN: Bork supporters welcomed the prospect of a much more conservative court. But they were careful to champion the nominee’s qualifications, not his ideology.

MALE SPEAKER: Robert Bork is extremely well qualified, has the judicial experience, the educational experience. He writes well. He’s a real scholar.

PETER: The debate raged all summer. Finally, Robert Bork appeared before the Senate Judiciary Committee in September of ’87.

ROBERT BORK: I want to begin by thanking the president for placing my name in nomination for this most important position.

NINA TOTENBERG: He did not do any practice sessions with the White House, what are called murder boards. He thought those were for sissies.

ROBERT BORK: I am quite willing to discuss with you my judicial philosophy and the approach I take to deciding cases.

PETER: The committee was especially interested in Bork’s judicial philosophy, based on the theory of original intent.

NINA TOTENBERG: The idea of original intent is the meaning of the Constitution that the founding fathers had that it’s not a living document. It doesn’t change with time.

PETER: In Bork’s view, recent decisions in favor of abortion and desegregation did not fit the founders’ original intentions. And so the question of precedent and whether Bork would uphold those decisions dominated the hearings. Bork backpedaled on some of his more controversial views, trying to appear more moderate. And he told the Senate Judiciary Committee that he took precedent seriously.

NINA TOTENBERG: And I think it was Kennedy who said to him, did you ever say anything different? And he said no. And then Kennedy played a tape of Bork at Canisius College saying–

ROBERT BORK: I don’t think, in the field of constitutional law, precedent is all that important. And if you become convinced that a prior court has misread the Constitution, I think it’s your duty to go back and correct it.

NINA TOTENBERG: Which was exactly contrary to what he was testifying about at these very hearings. And I thought it was a devastating moment, because it put his word in question.

TOM BROKAW: The long and bitter debate over Robert Bork came to an end today when the Senate voted to reject his nomination to the US Supreme Court.

NINA TOTENBERG: Republicans have not, to this day, gotten over it. They call it being Borked.

MALE SPEAKER: Senator Hatch of Utah called it a “de-borkale,” a process so politically charged that all senators but one had felt called upon to announce their votes in advance.

BRIAN: The Senate eventually confirmed President Reagan’s third Supreme Court nominee, Justice Anthony Kennedy. But the battle over Robert Bork’s nomination had long-term consequences.

JEFFREY ROSEN: And it was the beginning of this process of polarization that basically turned the confirmation process into partisan war zones.

BRIAN: Rosen says politics have always been part of the nomination process. But recent presidents have been careful to nominate judges without paper trails or judges who advertise ideological leanings for fear that they’ll be Borked. Ever since the Bork hearings, nominees have faced the relentless gaze of 24-hour news networks and attack ads from interest groups.

JEFFREY ROSEN: I guess what’s unfortunate is just that it’s a political process that seems to have broken down. And that’s something that the Bork hearings set into motion.

BRIAN: Which brings us to President Obama’s stalled effort to fill the seat left by the late Justice Antonin Scalia.

BARACK OBAMA: Today I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court.

BRIAN: Though Obama presents Judge Garland as a moderate, Senate Republicans have refused to even hold hearings, let alone vote on his nomination.