A Bit of Borking in Progress

The Bork nomination is much talked about and comes up a number of times in our reading. For many commentators, this nomination was the beginning of a steady politicization of judicial nominations but as our reading shows, this is not the case. Nominations have always been political in nature. Nonetheless, the Bork nomination was quite combative and many key players are still around (such as Joe Biden). I wasn't able to find many clips from the Bork hearings but due to Kennedy's recent death, this famous interchange from the hearings was posted. The article which forms the basis for many of the criticisms Kennedy lists here is “Neutral Principles and Some First Amendment Problems” (47 INDIANA LAW JOURNAL 1971) which remains a frequently read and cited argument about not only the First Amendment but a wide range of constitutional rights and the reach of Supreme Court authority in interpreting privacy and other liberties. Bork spent much of the hearing trying to get out from under his arguments in this piece, suggesting that his thinking had changed or that the article no longer reflected his views on all issues. Bork is one of the best examples of a nominee who was considered well qualified but was successfully opposed on ideological grounds, including 6 republican votes against his confirmation.