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25 Years After Bork

On Wednesday, AFJ President Nan Aron joined a panel hosted by American University Washington College of Law on the topic “The Judicial Confirmation Process 25 Years After Bork."  She, along with former U.S. Senator Arlen Specter; Charles Cooper, a former director in President Reagan’s Office of Legal Counsel; Michael Gerhardt, Professor of Constitutional Law at University of North Carolina School of Law; and David Savage of the Los Angeles Times shared perspectives on the impact of the Robert Bork Supreme Court confirmation hearings in 1987.

Responding to charges from Cooper that the Bork confirmation hearings were the moment when civil discourse was lost and “ugliness took a quantum leap downward,” resulting in “vulgarity” and “coarseness,” Aron incisively pointed out that Bork was appointed by Reagan as delivery on the president’s promise to give the right wing of his party an ultra-conservative judiciary. Opposing Bork, according to Aron, was an attempt to prevent partisan politics from capturing the Court and rolling back precedents on civil rights and women’s rights established by the Warren Court.

It was not the hearing process that prevented Bork from being confirmed, stated Aron, but Bork’s record of active opposition to priorities of the vast majority of ordinary people—a record that was well established and public long before Bork was appointed. Savage agreed that Bork was a non-starter for confirmation before his hearings even began, since his well-known opposition to the 1964 Civil Rights Act and to the Roe v. Wade decision automatically meant he was going to receive “no” votes from a majority of senators.

Senator Specter, whose stringent questioning of Bork during the confirmation process was one of the notable aspects of the hearings twenty-five years ago, expressed frustration that nominees refuse to candidly answer questions during their hearings before the Senate Judiciary Committee. Acknowledging that a nominee’s record is publicly known before hearings begin, Specter stated that the hearings should allow senators the opportunity to learn how a nominee is “going to approach the job of being a justice” and how they relate the law to the lives of the people it affects.

Specter also had strong words about the failure of the Court to abide by ethics and recusal standards that bind all other federal judges, characterizing the current Court’s attitude as one that borders on “the public be damned” and of being “an imperial court.” Noting that “public confidence in the Court is the bedrock of democracy—it can’t survive without it,” Specter strongly called for the Court to take measures that will increase transparency and accountability to the people.