The Wages of Bork

Increasingly it appears that the failure of the Supreme Court nomination of Robert Bork in 1987 was a watershed moment for the history of jurisprudence over the last generation, as Anthony Kennedy has been so central to so many bad rulings (and, fairness demands, a handful of good ones, like Citizens United).

While Chief Justice Roberts’s jurisprudence may remain inscrutable, nothing about Kennedy should surprise us, though. It was known at the time that he would be a wild card on the Court. Here’s the relevant passage from my Age of Reagan book describing the aftermath of the Bork defeat and the withdrawal of the Doug Ginsberg nomination:

The White House was left with a remarkably short list of prospective nominees.  They settled on a name that had survived previous screenings: Judge Anthony Kennedy of the 9th Circuit Court of Appeals.  Kennedy’s name came up immediately after Bork, but was rejected in favor of Ginsburg.  The judicial selection committee at the Justice Department was opposed to naming Kennedy.  Former Attorney general William French Smith told Reagan: “I know Anthony Kennedy, and he won’t be there in the trenches.”  Ed Meese felt the same way, telling Reagan: “I can’t look you in the eye and say he’s the kind of justice you want on the Supreme Court.”


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