How We Got Borking
This morning, Judge Bork went to a better place than this one. RIP.
Reasonable minds may argue over how different American law would be today if the Senate had confirmed Bork. The position ultimately was filled by Anthony Kennedy, who has been a diehard conservative in some areas (like economic policy and the First Amendment) and an unabashed liberal in others (like gay rights and restrictions on capital punishment). My best guess is that Bork would have been a conservative activist very much in the manner of Justice Antonin Scalia, a loud and consistent vote to roll back precedent not just to pre-Warren Court positions but to the Lochner-era sensibilities of a century ago.
But no reasonable person today can contend that judicial nomination proceedings are more insightful and productive in the wake of the Bork hearing. Throughout the long history of court appointments, confirmations had rarely been detailed affairs. In 1962, for example, John F. Kennedy appointee Byron White was questioned by the Senate Judiciary Committee for all of 11 minutes. In fact, it wasn’t until 1925 that a Supreme Court nominee (Harlan Fiske Stone) even appeared before the committee and it was another 14 years before a second (Felix Frankfurter) did so.
So the Bork hearing didn’t reverse a century of transparency in the process. But it certainly assured that no such transparency and candor would ever come again.