Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations

Shortly after the Judiciary Committee voted, the Senate began its debate or, as Bork termed it, "non-debate," since virtually all Senators had publicly declared their positions and were unlikely to change their minds.¹ Three subjects dominated the discussion: (1) whether Judge Bork was "outside the mainstream" of lawyers and judges, (2) whether the Senate's role in the appointments process should be broadly construed, and (3) whether the confirmation process had been fair to Judge Bork. There was disagreement on all of these questions, but it was the third issue that proved to be most explosive.

The debate began with explanations from various senators for their vote in favor of or in opposition to the confirmation of Judge Bork. Senators favoring confirmation pointed to Bork's intellect and integrity² and argued that Judge Bork's judicial philosophy was well within the mainstream. These senators emphasized that Bork had a record as solicitor general, and later as a federal judge, in support of civil rights. Senator Grassley said that Bork had "used his position as solicitor general to argue more pro-civil rights cases than any Supreme Court nominee since Thurgood Marshall."³ Similarly, Senator Mark Hatfield observed that Bork had participated in some four hundred cases as a member of the court of appeals and that he voted with the so-called liberal group 75 percent of the time and with the plaintiff in seven of ten cases involving issues of race, sex, or age discrimination.⁴

Senator Hatch pointed out that legal scholars and respected jurists, many of whom have been considered "moderate" or "liberal," agreed

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