What if?

Source: CNP/Getty Images

Robert Bork Wouldn't Have Changed History

Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University and wrote A Plain Blog About Politics.
Read More.
a | A

As the U.S. Supreme Court ends its eventful term this week, many political analysts are stepping back to look at the history leading up to its important decisions, particularly on the marriage case. The name that keeps coming up is Robert Bork.

Bork was the conservative firebrand who was Ronald Reagan's first choice to fill a Supreme Court vacancy in 1987. The Senate blocked him. Reagan eventually named Anthony Kennedy instead, a far less controversial choice.

At the National Review, Michael Potemra called the day Bork was defeated in the Senate at least possibly “America’s fundamental turn in the direction” leading to the court's marriage decision (see also Ed Whelan). Plenty of liberals and other court watchers were thinking about Bork as well. Everyone seems to agree he would never have approved of gay marriage, as Kennedy did. 

Potemra, speaking of Bork, argues that the Supreme Court “platform would have given him an outsized opportunity to influence America’s cultural and constitutional discussion -- and that America would have been significantly less likely to embrace the sort of the change the Court affirmed today.”

That’s bunk, and not just because Bork died in 2012 (meaning that he would have been replaced by a Barack Obama nominee if he had still been a justice at the time). Bork's testimony at his confirmation hearing helped turn public opinion against him, so there’s no reason to believe that judicial opinions he might have written would have increased support for his views.

If anything, a Supreme Court more conservative than the country would be more likely to cause a backlash against Republicans (as the liberal courts of the 1960s likely did against Democrats) than to “educate” the public into becoming conservative. 

Mostly, the story of how Bork was defeated and how Kennedy was confirmed is an excellent example of how the political system is supposed to work. Reagan, re-elected in a landslide in 1984, chose Bork to seal a conservative majority on the court.

But Senate Democrats had won their own landslide in 1986, and liberals led by Edward Kennedy moved quickly to oppose Bork. Eventually, 58 senators voted against confirming him, including six Republicans and all but two Democrats. Then the Senate easily confirmed Anthony Kennedy with a solid bipartisan vote.

As a compromise candidate, Kennedy would preserve the president’s ability to influence the court far into the future, yet also reflect the Senate’s preferences. (Senate liberals and moderates wouldn't have dreamed of blockading just any Reagan nominee, as Republicans have done for some appeals-court vacancies under Obama.)

The Bork fight showed how political action produces results, and how the consequences can be unpredictable and even shocking. The people who walked precincts and stuffed envelopes for Wyche Fowler in Georgia, Kent Conrad in North Dakota, Tom Daschle in South Dakota and other Democrats who won close Senate elections in 1986 contributed to changing the nation (as did those who worked for Reagan's election in 1980 and 1984).

Few of those long-ago campaign volunteers did it because a Supreme Court nomination was on the line, never mind imagine the kind of decisions future justices would be making. Yet their contributions all those years ago turned out to play a critical role in making marriage equality the law of the land.

  1. This Bork-centric way of looking at politics ignores other early factors and their long-term consequences, including a gay-rights movement that included advocates who worked directly for marriage equality for years. 

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Jonathan Bernstein at jbernstein62@bloomberg.net

To contact the editor on this story:
Katy Roberts at kroberts29@bloomberg.net