Speculation abounded over potential nominations to theSupreme Court of the United States byRonald Reagan even before his presidency officially began, due to the advanced ages of several justices, and Reagan's own highlighting of Supreme Court nominations as a campaign issue. Reagan had promised "to appoint only those opposed toabortion and the 'judicial activism' of the Warren and Burger Courts".[1] Conversely, some opposed to Reagan argued that he could "appoint as many as five Justices" and would "use the opportunity to stack the Court against women, minorities and social justice".[2]
During his 1980 campaign, Reagan pledged that, if given the opportunity, he would appoint the first female Supreme Court Justice.[3] That opportunity came in his first year in office when he nominatedSandra Day O'Connor to fill the vacancy created by the retirement of JusticePotter Stewart.[4] O'Connor was approved by the Senate by a vote of 99–0 on September 21, 1981.[5] SenatorMax Baucus (D–MT) did not vote.[4]
In his second term, Reagan elevatedWilliam Rehnquist to succeedWarren Burger asChief Justice.[6] Rehnquist's confirmation was largely split along party lines, showing that he had not improved his standing among Senate Democrats since his contentious1971 nomination to the Court.[6] Rehnquist's elevation to Chief Justice was approved by the Senate by a vote of 65–33 on September 17, 1986.[7] SenatorsJake Garn (R-UT) andBarry Goldwater (R-AZ) did not vote. SenatorAlan Simpson (R-WY) made public note on the Senate floor that Senator Garn's vote would have been to confirm had he been present.[6]
Democratic Senators who voted against Rehnquist's confirmation as an Associate Justice in 1971 and as Chief Justice in 1986 wereAlan Cranston (CA),Daniel Inouye (HI),Edward M. Kennedy (MA) andClaiborne Pell (RI). Two Democrats who voted for Rehnquist's nomination as Associate Justice voted against his nomination as Chief Justice,Thomas Eagleton (MO) andRobert Byrd (WV).
After deciding to elevate Rehnquist to Chief Justice, Reagan considered bothRobert Bork andAntonin Scalia to fill the vacant seat left by Rehnquist's elevation, but ultimately chose the younger and more charismatic Scalia.[8][9] Scalia was approved by the Senate by a vote of 98–0 on September 17, 1986.[10] SenatorsJake Garn (R-UT) andBarry Goldwater (R-AZ) did not vote.[8]
Supreme Court of the United States Associate JusticeLewis Franklin Powell Jr. was a moderate/conservative but the "swing vote" on close decisions, and even before his expected retirement on June 27, 1987, Senate Democrats had asked liberal leaders to form "a solid phalanx" to oppose whomever PresidentRonald Reagan nominated to replace him, assuming the appointment would send the court rightward; Democrats warned Reagan there would be a fight.[11] Reagan considered appointingUtah SenatorOrrin Hatch to the seat, but Congress had approved $6,000 pay raises forSupreme Court Justices in February, raising a problem under theIneligibility Clause of theUnited States Constitution, which prohibits a member of Congress from accepting an appointment for which the pay had been increased during that member's term. A memorandum byAssistant Attorney GeneralCharles J. Cooper rejected the notion that aSaxbe fix – a rollback of the salary for the position – could satisfy the Ineligibility Clause.[12][13] Hatch had been on the short list of two finalists withRobert Bork,[14][15] but after the Ineligibility Clause had been brought to light, Hatch was no longer under consideration. Reagan nominatedRobert Bork for the seat on July 1, 1987.
Within 45 minutes of Bork's nomination to the Court,Ted Kennedy (D-MA) took to the Senate floor with a strong condemnation of Bork in a nationally televised speech, declaring:
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, and 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.[16]
A brief was prepared forJoe Biden, head of the Senate Judiciary Committee, called theBiden Report. Bork later said in his best-selling[17] bookThe Tempting of America that the report "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility".[18] TV ads narrated byGregory Peck attacked Bork as an extremist, and Kennedy's speech successfully fueled widespread public skepticism of Bork's nomination. The rapid response of Kennedy's "Robert Bork's America" speech stunned the Reagan White House; though conservatives considered Kennedy's accusations slanderous,[11] the attacks went unanswered for2+1⁄2 months.[19]
A hotly contestedUnited States Senate debate over Bork's nomination ensued, partly fueled by strong opposition by civil rights and women's rights groups concerned with what they claimed was Bork's desire to roll back civil rights decisions of theWarren andBurger courts. Bork is one of only four Supreme Court nominees to ever be opposed by theACLU. Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy",[20] as demonstrated by his role in theSaturday Night Massacre.
During debate over his nomination, Bork's video rental history was leaked to the press, which led to the enactment of the 1988Video Privacy Protection Act. His video rental history was unremarkable, and included such harmless titles asA Day at the Races,Ruthless People andThe Man Who Knew Too Much. The list of rentals was originally printed by Washington D.C.'sCity Paper.[21]
To pro-choice legal groups, Bork'soriginalist views and his belief that the Constitution does not contain a general "right to privacy" were viewed as a clear signal that, should he become a Justice of the Supreme Court, he would vote to reverse the Court's 1973 decision inRoe v. Wade. Accordingly, a large number of liberal advocacy groups mobilized to press for Bork's rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle. Bork was faulted for his bluntness before the committee, including his criticism of the reasoning underlyingRoe v. Wade.
As chairman of the Judiciary Committee, Senator Joe Biden presided over Bork's hearing.[22] Biden stated his opposition to Bork soon after the nomination, reversing an approval in an interview of a hypothetical Bork nomination he had made the previous year and angering conservatives who thought he could not conduct the hearings dispassionately.[23] At the close, Biden won praise for conducting the proceedings fairly and with good humor and courage, as his 1988 presidential campaign collapsed in the middle of the hearings.[23][24] Biden framed his discussion around the belief that theU.S. Constitution provides rights to liberty and privacy that extend beyond those explicitly enumerated in the text, and that Bork's strong originalism was ideologically incompatible with that view.[24] Bork's nomination was rejected in the committee by a 9–5 vote,[24] and then rejected in the full Senate by a 58–42 margin.[25]
On October 23, 1987, the Senate rejected Bork's confirmation, with 42 senators voting in favor and 58 voting against. SenatorsDavid Boren (D-OK) andErnest Hollings (D-SC) voted in favor, with SenatorsJohn Chafee (R-RI),Bob Packwood (R-OR),Arlen Specter (R-PA),Robert Stafford (R-VT),John Warner (R-VA) andLowell P. Weicker Jr. (R-CT) all voting no.[25]
Following Bork's defeat, Reagan announced his intention to nominateDouglas H. Ginsburg, a former Harvard Law professor whom Reagan had appointed to theDistrict of Columbia Circuit the previous year. Ginsburg almost immediately came under some fire for an entirely different reason whenNPR'sNina Totenberg[26] revealed that Ginsburg had usedmarijuana "on a few occasions" during his student days in the 1960s and while an assistant professor at Harvard in the 1970s. In 1991, a similar admission by then-nomineeClarence Thomas that he had used the drug during his law school days had no effect on his nomination.[27][a] Prior to being formally nominated, Ginsburg withdrew his name from consideration due to the allegations but remained on the federal appellate bench.
After Ginsburg's withdrawal, Reagan nominatedAnthony Kennedy on November 11, 1987, and he was then confirmed to fill the vacancy on February 3, 1988.[29][30]
While vetting Kennedy for potential nomination, some of Reagan'sJustice Department lawyers said Kennedy was too eager to put courts in disputes many conservatives would rather leave to legislatures, and to identify rights not expressly written in the Constitution.[31] Kennedy's stance in favor of privacy rights drew criticism; Kennedy citedRoe v. Wade and other privacy right cases favorably, which one lawyer called "really very distressing".[32]
In another of the opinions Kennedy wrote before coming to the Supreme Court, he criticized (in dissent) the police for bribing a child into showing them where the child's mother hid herheroin; Kennedy wrote that
indifference to personal liberty is but the precursor of the state's hostility to it.[33]
The Reagan lawyers also criticized Kennedy for citing a report fromAmnesty International to bolster his views in that case.[33]Another lawyer said
Generally, [Kennedy] seems to favor the judiciary in any contest between the judiciary and another branch[33]
Kennedy endorsedGriswold as well as theright to privacy, calling it
a zone of liberty, a zone of protection, a line that's drawn where the individual can tell the Government, 'Beyond this line you may not go.'[34]
This gave Kennedy more bipartisan support than Bork or Ginsburg. The Senate confirmed him by a vote of 97 to 0.[34]
Following is a list of individuals who were mentioned in various news accounts and books as having been considered by Reagan or being the most likely potential nominees for a Supreme Court appointment under Reagan:
