It's just real ineptitude to have picked him [ Bork]. He was done before he started.
— Senator J. Bennett Johnston
ROBERT H. BORK'S nightmare began on July 1, 1987, after Justice Lewis F. Powell, Jr., announced his resignation from the Court, and President Ronald Reagan nominated the District of Columbia Circuit Court of Appeals Judge to fill the vacancy. 1 After a protracted and heated debate focusing on the nominee's judicial philosophy, the Senate rejected the nomination by a vote of 58-42 on October 23, 1987.
On October 29, 1987, Reagan tried again, nominating Judge Douglas Ginsburg, also of the District of Columbia Circuit Court, to succeed to Powell's position. 2 But this nomination was withdrawn on November 7, 1987, after it was revealed that Ginsburg had smoked marijuana both as a student at Cornell and as a law school professor at Harvard. Ginsburg was also faulted for a possible conflict of interest violation stemming from his 1986 handling of a case involving the cable television industry when he was head of the antitrust division of the Justice Department. At the time Ginsburg was participating in this case, he owned stock in a cable television company likely to be affected by the outcome.
On November 11, 1987, in a third attempt to fill the vacancy, Reagan nominated Judge Anthony M. Kennedy of the United States Court of Appeals for the Ninth Circuit. 3 The Kennedy nomination was confirmed by the Senate on February 3, 1988, by a 99-0 count.
The goal of this chapter is to provide an explanation of the Senate's refusals to confirm Bork and Ginsburg by drawing upon the background provided by the Fortas, Haynsworth, and Carswell cases and other unsuccessful nominations.