Brace yourself: Robert Bork is about to become very relevant again.
The name Robert Bork is familiar to most politicos, and his story serves as a forewarning for the Trump administration’s Supreme Court pick, Neil Gorsuch. Bork’s story is well known; a qualified—but overly conservative—nominee fails to be confirmed by a Democratic Senate. Embarrassment follows for the appointee, the president, and the administration. It wastes time, effort and perhaps most importantly, political capital.
President Ronald Reagan nominated Bork to replace moderate Justice Lewis Powell in July 1987. Bork was a near perfect Supreme Court nominee—at least for conservatives. His resume was practically flawless: a student of elite legal training, Bork was a former Marine and Solicitor General, and once served as a judge on the United States Court of Appeals for the D.C. Circuit.
But after President Reagan made public his intention to nominate Bork, backlash followed from the Senate. Despite his qualifications, Bork was viewed as a hardliner, much too conservative for the then-Democrat-controlled Senate. Sen. Ted Kennedy, D-Mass., famously warned Reagan against Bork, urging him to choose a more moderate nominee.
Reagan pushed forward with Bork’s nomination hoping for the Senate to bend. On October 6, 1987, Bork was rejected nine votes to five in the Senate Judiciary Committee. Later that month, the Senate voted 58 to 42 against Bork, with six Republican senators voting against, putting an end to his nomination.
The embarrassment of the Bork confirmation has led every president since to tread carefully with nominees and mind their adversaries in the Senate. It was the first time in 17 years that the Senate rejected a Supreme Court nominee and is viewed as one of Reagan’s most notable miscalculations. Since then, journalists write headlines with Bork’s name to represent rejection. His name is even used as a verb: Borked.
When Justice Antonin Scalia died in February 2016, President Barack Obama took heed of the warnings of Bork’s story by nominating Merrick Garland, the moderate Chief Judge of the United States Court of Appeals for the DC Circuit. Obama believed that Garland would be more palatable to the Republican Senate and that he could dodge a “Borking” of his nominee.
Moderate Senate Republicans have commended Garland in the past. When President Bill Clinton first nominated Garland for the US Court of Appeals for the DC Circuit in 1995, Sen. Orrin Hatch, R-Utah, lavished praise on him. “I believe Mr. Garland is a fine nominee. I know him personally, I know of his integrity, I know of his legal ability, I know of his honesty, I know of his acumen, and he belongs on the court,” said Hatch.
Avoid a fringe, progressive judge and Republicans will approve. Sounds logical, right?
Despite the well-calculated move from Obama, the Senate refused to hold hearings and offer their “advice and consent” on any potential nominee from the president, “Borking” Merrick Garland to the annals of history, despite his moderate beliefs.
On January 31, President Donald Trump nominated Judge Neil Gorsuch of the Tenth Circuit for Scalia’s seat. He is relatively young, amiable, and highly educated. Gorsuch has ties to the Supreme Court as well: he clerked for sitting Justice Anthony Kennedy.
So how does Bork tie into Gorsuch’s nomination? Trump is aware that Republicans may not hold the Senate after the elections in 2018 or 2020, making Scalia’s seat perhaps his only shot at getting a conservative justice on the bench.
Instead of “draining the swamp,” Trump chose a “swamp-creature.” The anti-establishment, outsider president appointed a judge beloved by GOP budget hawks and social conservatives alike. Gorsuch practiced law in Washington, spent time in the Department of Justice, and his mother headed the Environmental Protection Agency under Reagan. Sen. McCain, R-Ariz., a self-described “maverick,” heaped praise on his nomination. Even Ted Cruz, R-Texas, who is infamously disliked in the Senate, called Gorsuch a “home run.”
Trump could have chosen a conservative firebrand like Judge William Pryor of the Eleventh Circuit, who was surely the most Trump-like of the names on the SCOTUS shortlist and would have pleased populists. But he didn’t. If he did, it is possible that moderate GOP senators like Jeff Flake, R-Ariz., or Susan Collins, R-Maine, would have voted against him, ultimately leading to a “Borking.” One of Trump’s cabinet picks has already come close to this: two GOP senators recently broke party lines to vote against the now Secretary of Education Betsy DeVos.
Clearly, Bork’s story remains relevant. Although Bork—a conservative—faced a Senate led by Democrats, and Gorsuch—also a conservative—faces a Senate held by Republicans, his story is particularly important for a president facing disobedient blocs in his own party.
Gorsuch faces a trying road of scrutiny, hearings, and media fanfare. There is little doubt Bork’s story hangs heavy over Gorsuch’s nomination.
Michael Melli is a law student at The Florida State University College of Law. Mr. Melli is preparing to apply to PhD programs in Political Science with a focus in Constitutional Law, Separation of Powers, and Judicial Politics.