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Bork nomination fight altered judicial selection

Wednesday - 12/19/2012, 4:23pm  ET

Associated Press

WASHINGTON (AP) - Conservatives wanted Robert H. Bork on the Supreme Court. They wound up with Anthony Kennedy, the key vote in reaffirming a woman's right to an abortion.

The fight over Bork's failed Supreme Court nomination redefined the Senate confirmation process and made him a symbol of the nation's culture wars. The political battle that erupted over Bork has now, years later, expanded to stall nominees for far lesser judicial posts, and nominees themselves have curbed their responses to questioning to avoid his fate.

Had Bork, who died Wednesday at age 85, prevailed and become a justice, his vote would have dramatically changed the court.

President Ronald Reagan's choice of Bork in 1987 to replace Justice Lewis Powell was intended to cement conservative control of the court for decades. And Bork gave both his supporters and opponents every reason to believe, through scholarly writings and judicial decisions, that he would be a consistent conservative vote on a range of key issues. That would include, perhaps most importantly, one day delivering the decisive blow to undo the 1973 Roe v. Wade ruling that declared a woman's right to an abortion.

He was a staunch critic of the court's Griswold v. Connecticut decision in 1965 that found a right to privacy in the Constitution that trumped a state law prohibiting even married couples from using birth control. The ruling was a precursor to decisions in favor of abortion rights and gay rights, including some authored by Kennedy.

In the mid-1980s, Bork was better known and had a much longer legal resume than his conservative colleague on the federal appeals court in Washington, Antonin Scalia. Bork had been a Yale law professor, whose students included Bill Clinton and Hillary Rodham.

He was the Nixon administration's top Supreme Court lawyer and played a dramatic role in the Watergate scandal's Saturday Night Massacre. When Attorney General Eliot Richardson and his deputy, William Ruckelshaus, refused President Richard Nixon's order to fire Watergate special prosecutor Archibald Cox, Richardson resigned and Ruckelshaus was fired. The next in line at the Justice Department, Solicitor General Bork complied and earned the enmity of many Nixon opponents, although Richardson himself later praised Bork for his actions.

In 1986, Chief Justice Warren Burger's retirement gave Reagan the chance to elevate Justice William Rehnquist to chief justice and fill Rehnquist's seat. Bork and Scalia were strong contenders and shared the "originalist" view that judges should focus on the meaning of the Constitution and laws as they were understood at the time they were written

Reagan went with Scalia, nine years younger than Bork and also the first Italian-American on the Supreme Court. With most attention focused on Rehnquist, Scalia sailed to confirmation through a Republican-controlled Senate.

But by the time of Powell's retirement, a year later, control of the Senate had shifted to the Democrats and control of the court was at stake. On the same day Reagan said he would nominate Bork, Sen. Edward Kennedy rushed to the Senate floor to paint a vivid picture of Bork that enraged the White House and signaled the coming confirmation battle.

"`Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government and the doors of the federal courts would be shut on the fingers of millions of citizens," Kennedy said.

The Senate had scuttled four high court nominations in the 20 years before Bork's: two Democratic picks, Abe Fortas and Homer Thornberry, and two Republican ones, Clement F. Haynsworth Jr. and G. Harrold Carswell. But the fight over Bork was intensely partisan and ideological, and it reflected the high stakes in the Reagan administration's effort to push the federal judiciary to the right.

The American Civil Liberties Union dropped more than a half-century of neutrality in confirmations to oppose Bork. Liberal interest groups mobilized in a precursor to what is now standard practice on both the left and right, to fight the nomination. Actor Gregory Peck recorded anti-Bork commercials.

The Senate hearings were in one sense a televised civics lesson: Bork, a burly man with a heavy beard, repeatedly defended _ in dry scholarly terms _ his view that judges should play a limited role in American life. He faced sustained Democratic attacks on his writings in academia and on the federal bench.

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