Justice Robert Bork

[Paul V McNutt]

The least complicated way to get Bork on the Court is to have President Reagan nominate him to replace William Rehnquist, when Rehnquist was nominated to be Chief Justice in 1986. There eight conservative Republican Senators who were defeated or retired in the 1986 elections. OTL the Senate vote on Bork in 1987 was 58 no and 42 yes. So ITTL we could have the Senate tied 50 50 on Bork in 1986. Vice President Bush would be on hand to cast the tie breaking vote to confirm Bork. In 1987, Justice Powell would still retire, ITTL he is replaced not by Anthony Kennedy but by Antonin Scalia. So the one change in the Supreme Court line up is that Robert Bork is there instead of Anthony Kennedy. All the justices who came to the court 1990-2010 would still get there. The most important change ITTL is the 1992 case Casey vs Planned Parenthood. Bork with Chief Justice Rehnquist, Justices White, Scalia and Thomas form the majority that overturned Row vs Wade. There is not the political will in any state to outlaw abortion, but restrictions on abortion are enacted in some states. George HW Bush is hurt in the 1992 election. The Popular vote ITTL is Clinton 44% ( OTL 43%) Bush 34% ( OTL 37% ) Perot 21% ( OTL 19%) The Electoral College is Clinton 486 ( That is OTL plus Arizona, Florida, Indiana, Kansas, North Carolina, South Dakota, Texas, Virginia and Wyoming. Clinton becomes the first Democrat since Lyndon Johnson to carry Indiana, Kansas, South Dakota, Virginia and Wyoming. The high electoral vote is described as the Clinton landslide. Despite all the turmoil created by Casey vs Planned Parenthood, the constitutional right to an abortion returns in January 1994. New justice Ruth Bader Ginsberg along with Justices Blackmun, Stevens, O Conner and Souter accept an abortion case at the beginning of the 1993 term. In January 1994, they are the majority in the decision that reaffirms the constitutional right to an abortion. The decision does not challenge the various restrictions on abortion, so abortion is still difficult in much of America. Aside from the Casey case, Bork does not have a major impact. If you look at the Selected Landmark Decision of the US Supreme Court listed on pages 560-562 of the 2016 World Almanac there are only 10 decisions during Borks time on the court that would have gone the other way. 1989s Texas vs Johnson would uphold laws banning burning of the flag. In the 1995 US Term Limits vs Thorton the court would have allowed states to set term limits for members of Congress. In 2002's Atkins vs Virginia, the court would have allowed the execution of the mentally handicapped. In 2005, Roper vs Simons allows the death sentences for defendants under the age of 18. That same year the court stops local government from taking private property for economic development. 2008's Hamadan vs Rumsfeld would have approved the system of military tribunals for trying Guantanamo detainees. That same year in Boumadiere vs Bush the court would deny the Guantanamo detainees the right of habeus corpus in the federal courts. In 2010, Graham vs Florida would allow defendants under 18 to get life sentences for crimes other than murder. In 2012's Miller vs Alabama the court would allow juveniles to get life without parole. I am assuming Bork would have always votes with conservative block, something Justice Kennedy usually did. None of these decisions would have stirred major political controversy. In addition to his votes as a justice, Bork would have had an impact by not retiring. Serving on the Supreme Court would have been Robert Bork's dream job. If he still dies on December 27, 2012, he creates a liberal court. President Obama replaces him with Michigan Governor Jennifer Granholm. I assume she votes with the liberals. In 2013's Shelby County vs Holder, the court reaffirms the Federal Supervision of states and local governments set out in the Voting Rights Act. The 2014 Hobby Lobby Case goes the other way. When Antonin Scalia dies the Republican Senate holds hearings on and votes to confirm Merrick Garland. They don't see the difference between a 5-4 liberal court and 6-3 one. President Obama's immigration action is confirmed by the Supreme Court in a 6-3 vote.

 

[David T]

Would Bork have had that easy a time even in 1986?

"The choice of Scalia over Bork in 1986 was a complex political calculation. Rehnquist had been a lone right-wing dissenter during his fifteen years on the Supreme Court. The administration knew his promotion to chief justice would draw intense liberal opposition. To send up Rehnquist with Bork would promote an explosive combination that might place both nominations in jeopardy, despite a Republican majority in the Senate. It would make more sense...to offer a less controversial nominee along with Rehnquist, thereby siphoning off liberal energy toward the future chief justice. The plan worked..." https://books.google.com/books?id=VpFLtmfnRaMC&pg=PA17

Indeed, the fact that Bork was rejected 58-42 whereas the Democrats only controlled the Senate by 54-46 then (after Ed Zorinsky of Nebraska died and was replaced by a Republican) would seem to indicate that the Democrats gaining control of the Senate was not the *only* reason for Bork's defeat. OTOH, simply to count votes in this mechanical way ignores the change in the political atmosphere caused by the fact of the Democrats having control of both houses of Congress (helping to make Reagan look like more of a lame duck in 1987 than he did in 1986), having control over the hearings, etc. It ignores that once it was clear that Bork would lose anyway, some senators might have decided to vote against him who would not necessarily have rejected him in a closer vote. And it also ignores that there might be more opposition to a right-winger replacing Powell then replacing Burger (who, next to Rehnquist, was the most conservative justice on the Burger Court). Besides, the Democrats may been more sensitive to the African American vote in 1987 because it had helped them win a number of a number of Senate seats, especially in the South (Alabama, Florida, Georgia, North Carolina) in 1986.

Nevertheless, nominating *two* outspoken conservatives who had opposed civil rights bills would not be totally safe even in 1986. So maybe a better idea for Reagan would have been to make Bork, rather than Rehnquist, Chief Justice in 1986. That way you only have to have one confirmation hearing, not two. If Reagan succeeds with that, Scalia will probably be confirmed in 1987 (he hadn't yet said anything nearly as controversial as some of the things Bork had said, and besides, some senators would not want to reject the first Italian-American justice...)

 

[fb111a]

I'm not so sure that Bush would be in as much trouble, largely because borking does not become a verb. If Bork is on the court and the borking doesn't happen, then Bush is more likely to nominate a more conservative judge, say Edith Jones of the Fifth Circuit in 1990 (she is from Texas, and he would know her) instead of taking a chance on stealth nominee David Souter. So, Casey is not a 5-4 ruling against abortion, it's likely to be 6-3.

A President George H. W. Bush who has both Jones and Thomas on his record means fewer conservatives would see defection to Perot as warranted. With that, figure Bush gets about 40-45% of what Perot got, and he has a secure right flank that gives him more room to appeal to the center.

There is a chance that George H. W. Bush squeaks in to a second term because states that were close Clinton wins in 1992, like Ohio (21), Georgia (13), Kentucky (8), Louisiana (9), New Jersey (15), Colorado (8), Iowa (7), New Hampshire (4), Nevada (4), Montana (3), and Tennessee (11) flip from Clinton to Bush, giving Bush 271 electoral votes as opposed to 168 in OTL.

With that, when Byron White retires, Bush puts Emilio Garza on the court in 1993, and the next year, it could very well be one of Samuel Alito (already on the Third Circuit) or John Roberts (who had been nominated for the D.C. Circuit - probably Alito gets it from already being on the court) when Harry Blackmun retires.

So, by the end of the second Bush term, the Bork Supreme Court has Chief Justice Bork, and associate justices Rhenquist, Stevens, O'Connor, Scalia, Jones, Thomas, Garza, and Alito.

 

[Athelstane]

Bork in 1986 would be higher risk than Scalia, certainly.

That said, a lot of the calculus at work by Senate Democrats in 1987 was twofold: 1) that they finally had a majority again - which would make it an easier sell to wavering moderate Democrats - and 2) Reagan was weakened politically in 1987 as a result of the Iran-Contra affair (which only came to light in November 1986), and also, of course, by being a true lame duck.

So it's a closer call on whether they go "all in" against Bork in 1986. It's possible they might, but they would now need to convince at least four Republicans. They actually managed that in 1987, but after it was already apparent that Bork was in deep trouble since nearly all Democrats had declared against him.

Nevertheless, nominating *two* outspoken conservatives who had opposed civil rights bills would not be totally safe even in 1986. So maybe a better idea for Reagan would have been to make Bork, rather than Rehnquist, Chief Justice in 1986. That way you only have to have one confirmation hearing, not two. If Reagan succeeds with that, Scalia will probably be confirmed in 1987 (he hadn't yet said anything nearly as controversial as some of the things Bork had said, and besides, some senators would not want to reject the first Italian-American justice...)

Interesting idea here all around. (And you're right that Scalia's Italian heritage was a very big help to him.)

 

[Galba Otho Vitelius]

One thing is that the "advice and consent" language is not just words, the composition of the Senate really does limit the President's ability to, well, pack the court. So if a judge perceived as really right wing is put on the Court to replace Rehnquist, the Senate will insist on a relative moderate in 1988 to replace Powell. It doesn't really matter if Bork is the 1986 nominee and Scalia is the 1988 nominee, as opposed to vice versa. Scalia can get borked as well.

 

[Indicus]

I'm not so sure that Bush would be in as much trouble, largely because borking does not become a verb. If Bork is on the court and the borking doesn't happen, then Bush is more likely to nominate a more conservative judge, say Edith Jones of the Fifth Circuit in 1990 (she is from Texas, and he would know her) instead of taking a chance on stealth nominee David Souter. So, Casey is not a 5-4 ruling against abortion, it's likely to be 6-3.

A President George H. W. Bush who has both Jones and Thomas on his record means fewer conservatives would see defection to Perot as warranted. With that, figure Bush gets about 40-45% of what Perot got, and he has a secure right flank that gives him more room to appeal to the center.

There is a chance that George H. W. Bush squeaks in to a second term because states that were close Clinton wins in 1992, like Ohio (21), Georgia (13), Kentucky (8), Louisiana (9), New Jersey (15), Colorado (8), Iowa (7), New Hampshire (4), Nevada (4), Montana (3), and Tennessee (11) flip from Clinton to Bush, giving Bush 271 electoral votes as opposed to 168 in OTL.

With that, when Byron White retires, Bush puts Emilio Garza on the court in 1993, and the next year, it could very well be one of Samuel Alito (already on the Third Circuit) or John Roberts (who had been nominated for the D.C. Circuit - probably Alito gets it from already being on the court) when Harry Blackmun retires.

So, by the end of the second Bush term, the Bork Supreme Court has Chief Justice Bork, and associate justices Rhenquist, Stevens, O'Connor, Scalia, Jones, Thomas, Garza, and Alito.

There's no chance in hell Bush wins a second term. If Bush is in the lead and it is obvious Perot is dividing the Democratic vote, Perot will drop out, handing the election to Clinton. A different nominee for the SCOTUS doesn't turn a 2008-style victory for Clinton into a victory for Bush.

 

[Athelstane]

One thing is that the "advice and consent" language is not just words, the composition of the Senate really does limit the President's ability to, well, pack the court. So if a judge perceived as really right wing is put on the Court to replace Rehnquist, the Senate will insist on a relative moderate in 1988 to replace Powell. It doesn't really matter if Bork is the 1986 nominee and Scalia is the 1988 nominee, as opposed to vice versa. Scalia can get borked as well.

Scalia could be Borked, but it's important to remember that Scalia's lightning rod reputation is mostly a product of his years on the Court. At the time, he was seen in a less mordant light - and like David says, being an Italian was a big help to him. Scalia only had a brief confirmation hearing, and sailed through 98-0. (Hard to believe, I know.) It also helped that Scalia was a lot more charismatic and savvy than Bork was, and that he did not have Bork's public record of opposing the Civil Rights Act (which was an important factor in Kennedy's success in persuading southern white Democrats to vote against Bork).

That said, he'd make a potential conservative majority on the Court, and that would not be missed by Senate Democrats. I don't think he'd get confirmed 98-0 in 1987. But it's hard to say much beyond that.

 

[fb111a]

There's no chance in hell Bush wins a second term. If Bush is in the lead and it is obvious Perot is dividing the Democratic vote, Perot will drop out, handing the election to Clinton. A different nominee for the SCOTUS doesn't turn a 2008-style victory for Clinton into a victory for Bush.

If Bush is able to focus all of his attention on just one opponent, not two, and he has a less-fractured conservative base, I think Clinton's got a much tougher row to hoe. The latter helps with the former.

The Bork nomination was a perfect storm for the Dems in late 1987:

• They had the ability to attack him and set the terms of that debate.
• They had the votes to win on their own.
• They had Bork's paper trail.
• Bork did not have the media skills of other nominees, either.

If Reagan had nominated Bork for Chief Justice in 1986, he wins confirmation by about the same margin as Rhenquist did in OTL. Without borking Bork, the Democrats in the Senate maybe let Scalia through. So, the SCOTUS Bush Sr. inherits is:
Chief Justice Bork and White, Brennan, Blackmun, Marshall, Rhenquist, Stevens, O'Connor, and Scalia

When Brennan retires, without the specter of borking, George H.W. Bush doesn't feel the need to pick "stealth nominee" David Souter. Instead, he picks Edith Jones from his adopted home state of Texas. As only the second woman nominated to the Supreme Court, Jones sails through like Souter did in ORL (albeit for different reasons).

The ONLY chance that would exist to "bork" a nominee then would be if Thomas replaces Marshall as he did in OTL. But even then, without the perceived need to go for a nominee with no real paper trail, perhaps Bush defers and saves Clarence Thomas for later - butterflying the whole Anita Hill controversy out of history (which would again make Clinton's challenge harder).

 

[Indicus]

If Bush is able to focus all of his attention on just one opponent, not two, and he has a less-fractured conservative base, I think Clinton's got a much tougher row to hoe. The latter helps with the former.

The exit polls show that Perot voters were split down the middle. That amounts to a 2008-style victory. I think with only one opponent, Clinton is also more able to focus on Bush, and he doesn't have to worry about liberals and Jerry Brown supporters going to Perot. His base is also less fractured. Both candidates gain an approximately equal amount of support. With the recession, it was a Democratic year, and Clinton wins by seven points.

The Bork nomination was a perfect storm for the Dems in late 1987:

• They had the ability to attack him and set the terms of that debate.
• They had the votes to win on their own.
• They had Bork's paper trail.
• Bork did not have the media skills of other nominees, either.

If Reagan had nominated Bork for Chief Justice in 1986, he wins confirmation by about the same margin as Rhenquist did in OTL. Without borking Bork, the Democrats in the Senate maybe let Scalia through. So, the SCOTUS Bush Sr. inherits is:
Chief Justice Bork and White, Brennan, Blackmun, Marshall, Rhenquist, Stevens, O'Connor, and Scalia

That's scary. I think Bork was just too conservative. If Reagan nominated Bork in 1986, the Senate would just delay proceedings in a manner not unlike today's Senate in regards to Garland. Come 1986, huge gains in the Senate are inevitable and then when Bork's confirmation comes to a vote, he gets beat. Again, Bork was too conservative.

 

[fb111a]

Scalia could be Borked, but it's important to remember that Scalia's lightning rod reputation is mostly a product of his years on the Court. At the time, he was seen in a less mordant light - and like David says, being an Italian was a big help to him. Scalia only had a brief confirmation hearing, and sailed through 98-0. (Hard to believe, I know.) It also helped that Scalia was a lot more charismatic and savvy than Bork was, and that he did not have Bork's public record of opposing the Civil Rights Act (which was an important factor in Kennedy's success in persuading southern white Democrats to vote against Bork).

That said, he'd make a potential conservative majority on the Court, and that would not be missed by Senate Democrats. I don't think he'd get confirmed 98-0 in 1987. But it's hard to say much beyond that.

Kennedy also had the advantage of the Senate Majority in 1987. He could, in a sense, set the terms of the debate and the hearings. Had the "borking" failed, and Robert Bork made the Supreme Court anyway, the failure would have resonated. Truly, in terms of domestic politics, the "borking" was probably the most consequential battle in the last quarter of the 20th century.

It not only kept Bork off the court for Kennedy, but it also forced a stealth nominee strategy that means Bush Sr. put a liberal (David Souter) on the Supreme Court. Had the borking failed or never been tried at all, Kennedy and Souter would have been replaced with more conservative nominees, and the legal structure of the country would have changed.

 

[fb111a]

The exit polls show that Perot voters were split down the middle. That amounts to a 2008-style victory. I think with only one opponent, Clinton is also more able to focus on Bush, and he doesn't have to worry about liberals and Jerry Brown supporters going to Perot. His base is also less fractured. Both candidates gain an approximately equal amount of support. With the recession, it was a Democratic year, and Clinton wins by seven points.

You still are looking at a far more conservative Supreme Court. When Brennan retires, substituting Edith Jones for Souter, and Garza for Thomas (assuming that makes for a 6-3 court ruling to strike down Roe in Planned Parenthood v. Casey. But also, with no Anita Hill as a rallying point, does the "Year of the Woman" still take place?

That's scary. I think Bork was just too conservative. If Reagan nominated Bork in 1986, the Senate would just delay proceedings in a manner not unlike today's Senate in regards to Garland. Come 1986, huge gains in the Senate are inevitable and then when Bork's confirmation comes to a vote, he gets beat. Again, Bork was too conservative.

The GOP had the Senate in 1986. Rhenquist got 65 votes with the controversy attached to him. You are assuming that Kennedy would still give his "Robert Bork's America" speech when he is in the minority. He cannot dictate the terms of the committee hearings (because he is in the minority). He cannot even be assured that a Republican majority will see defections opposing Bork, or that Democrats won't defect (some Democrats did defect and support Bork in OTL).

Kennedy had the tools to make sure "borking" succeeded in 1987. He didn't in 1986. If anything, the "micro-borking" of Rhenquist failed. So, who becomes the first to be "borked" in this new timeline? Does Kennedy do it to Scalia, with no evidence? Edith Jones, when Kennedy has a checkered past in his treatment of women? Bork was the perfect target with his paper trail, lack of media savvy, and Kennedy's ability to dictate the terms of the debate because Democrats were in the majority.

Furthermore, you still dismiss the effects of the failure of "borking" as a strategy. If borking fails or is never tried, there's a whole shift in terms of the Supreme Court, not only in who gets nominated/confirmed, but in terms of the dynamics.