Merrick Garland’s appointment battle is beginning to feel like Robert Bork’s in the Reagan administration. Similarities include the focus on the court as a political institution, the undeniable qualifications of the nominee, and the bitterness and anger on both sides.
Although “Borking” has become shorthand in some circles for unfair attack on a nominee, the Bork battle itself is largely forgotten. I’ve recently been writing my recollections, which include this account of the role of women in the 1987 drama.
Robert Bork was a popular professor at Yale Law School when I was a student there in the early 1960s, but I did not take his antitrust course because neither the subject nor his economic approach to law interested me. By the time he was nominated to the U.S. Supreme Court, Bork had taken up constitutional law, served for more than five years on the U.S. Court of Appeals for the D.C. Circuit, and established himself as one of the intellectual leaders of the legal conservative movement.
No one could doubt his ability, and he was an obvious choice to further Reagan’s project of creating a solid conservative majority on the high court. Women’s rights activists feared his appointment would be the death of Roe v. Wade, which he had strongly denounced.
As one of the first teachers of a course we called simply “Women and the Law,” I was asked by the Senate Judiciary Committee to testify about the nomination, along with other women lawyers asked to testify in the confirmation hearing. Behind schedule on my biography of one of the nation’s first women lawyers, Clara Foltz, I hesitated. But then I thought how amazed and happy Clara would have been at such an invitation, and I accepted.
My husband and Stanford Law colleague Tom Grey was testifying in the Bork hearings as part of a group of constitutional law scholars. We arrived to find a city obsessed, as only D.C. can be, with a single political event. From the Ethiopian taxi driver to lawyers of every kind, from print and broadcast media to people on the street, all were focused on the televised spectacle.
We women met for a strategy session at the offices of Brooksley Born, one of the handful of women partners in a major law firm. As probably the first panel of women lawyers ever to testify in a Supreme Court confirmation hearing, we wanted to make sure we did it right by covering all the issues and avoiding repeating or contradicting each other.
On the women’s panel were Shirley Hufstedler, a former federal judge and President Jimmy Carter’s secretary of education; Sylvia Law, a professor at New York University School of Law; and Wendy Williams, a professor at Georgetown University Law Center. Women were on several other panels, too. It was electrifying to gather in the corridors of power and feel that what we said might matter there.
Looking back now on my testimony almost three decades later, I am struck first by the directness of our attack, starting with my charge that “Judge Bork’s rhetoric is a good 15 years behind the times on women’s rights, just as it was on civil rights for blacks before now.”
I got into a debate with Republican Sen. Orrin Hatch about the interpretation of a Bork opinion in a case holding that sexual harassment at work was a form of discrimination under Title VII. Hatch tried to show that the opinion did not disagree with the Supreme Court’s holding to that effect. In exasperation, I said: “The woman loses with Judge Bork’s reading, and she wins in the Supreme Court.” I remember feeling satisfied with that.
My husband Tom’s panel came on late in the evening of the same day. Representing a group of liberal law professors, he focused particularly on Bork’s extrajudicial writings and speeches, arguing that the theory they articulated meant that as a justice he would be far more radical than the other conservatives on the court. In response to such arguments, Bork’s proponents had argued that the radical views were merely academic theorizing, “tentative, speculative, ranging shots.”
To refute this, Tom quoted from a recent speech in which Bork had savaged those who disagreed on his theory of originalism, telling his Federalist Society audience that although it may take years for conservative constitutional theorizing to crest, “crest it will, and it will sweep the elegant, erudite, pretentious, and toxic detritus of nonoriginalism out to sea!” Tom’s sardonic parting shot was: “Tentative?” I heard him mutter: “Ha!”
The decades since the Senate rejected the Bork nomination by a 58-42 vote have seen much academic and popular discussion about whether our campaign helped or hurt the judicial system and the selection process. But there can be little doubt that it was important for preserving women’s legal victories and critical for achieving future gains. Justice Anthony Kennedy, a more moderate judge and less forceful intellectual leader, was appointed instead of Bork, who resigned from the D.C. Circuit the next year and spent much of the rest of his life railing against ultraliberals, radicals and leftists.
For us activist women, the triumph of believers in a living Constitution was bracing; it seemed a hopeful portent for future choices that would at least hew to the middle of the road. Merrick Garland is a prime example of the kind of nominee whose appointment would build on what we learned and what we gained from the Bork battle so many years ago.
Barbara Babcock, Judge John Crown Professor of Law, Emerita, was the first woman appointed to the regular faculty, as well as the first to hold an endowed chair and the first emerita at Stanford Law School. She has taught and written in both the fields of civil and criminal procedure for many years, and has pioneered the study of women in the legal profession.
This op-ed was originally published by The National Law Journal on April 11, 2016.