The Bork Hearings and a New Senate Majority's Power Over Nominations

On October 23, 1987, Robert Bork knew he was going to lose, and he insisted on the vote anyway. The Senate Judiciary Committee had already recommended against his confirmation to the Supreme Court. Friends and White House aides had suggested he withdraw quietly, the way nominees in trouble usually do. Bork refused. He said he wanted the full Senate to vote, so the record would show what had happened. It did. The tally was 58 to 42 against him, one of the widest margins by which the Senate has ever rejected a Supreme Court nominee. Within a few years his last name had become a verb, a word people on the right used for a nominee taken down by an organized campaign, and a word people on the left heard as a description of the Senate simply doing its job. Both meanings are still in circulation. What actually happened in the summer and fall of 1987 is a story about a new Senate majority discovering a power it had always had, and using it in public, on television, for the first time on that scale.

In short: After Democrats won the Senate in 1986, President Reagan nominated Judge Robert Bork to the Supreme Court in 1987. The Democratic-led Judiciary Committee used televised hearings to put Bork's written views on privacy, civil rights and free speech before the public, and the Senate rejected him 58 to 42, with Republicans among the no votes. The fight changed confirmations for good. This post explains what the hearings did, what critics said, and what it means for a Senate that will again be Democratic in 2027.

A swing seat and a famous judge

On June 26, 1987, Justice Lewis Powell announced his retirement. Powell was a moderate Virginian, appointed by Richard Nixon, who had often cast the deciding vote on a closely divided Court, including in cases on affirmative action and abortion. Whoever replaced him could shift the Court's direction for a generation.

Five days later, President Reagan nominated Robert Bork, a judge on the federal appeals court in Washington, D.C. On paper, few nominees had ever been better credentialed. Bork had been a Yale law professor, one of the founders of the law-and-economics movement in antitrust, a prolific writer and a sharp, witty debater. He had served as solicitor general, the government's chief lawyer before the Supreme Court.

He also carried a detail from that job that would follow him: on October 20, 1973, in the episode known as the Saturday Night Massacre, President Nixon ordered the firing of the Watergate special prosecutor, Archibald Cox. Attorney General Elliot Richardson resigned rather than do it, and so did his deputy, William Ruckelshaus. Bork, the third-ranking official, carried out the order. He later said he did so to keep the department functioning and that he had considered resigning afterward. Many people never forgave him; others thought he had acted responsibly in an impossible spot.

The detail that mattered most in 1987, though, was a fact about the Senate rather than the nominee. In the 1986 midterms, Democrats had won back the Senate, and with it the chairmanship of the Judiciary Committee. The chair was Joe Biden of Delaware.

The speech that opened the fight

Within an hour of the announcement, Senator Edward Kennedy of Massachusetts went to the Senate floor. His speech began with a line that became the most famous, and most criticized, of the entire fight: "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters." It went on in the same vein about police, schoolchildren, writers and artists.

Supporters of Bork have called the speech a smear, and it was certainly a caricature; Bork never proposed segregated lunch counters. Kennedy's defenders said the speech was pointed but rooted in Bork's own record. In 1963, Bork had written a magazine article opposing the public accommodations provisions of the civil rights bill then before Congress, arguing that they infringed on the freedom of business owners to choose their customers. He later said publicly that he had changed his mind. He had criticized the reasoning in Griswold v. Connecticut, the 1965 decision recognizing a right of married couples to use contraception, as an invention of a right the Constitution did not contain. He had written that the First Amendment's protection should extend chiefly to political speech.

The speech mattered less for its rhetoric than for its timing. It set the terms before the White House could, and it signaled to civil rights, women's and labor groups that the fight was winnable.

What the hearings actually did

The Judiciary Committee hearings opened on September 15, 1987, and ran for about two weeks. They were carried live on television. Bork himself testified for several days, longer than nominees typically do now.

Here is the mechanism that made them different. Before 1987, Supreme Court confirmation hearings had usually focused on a nominee's qualifications and character. Senators asked few detailed questions about legal philosophy, and nominees answered fewer. Bork's case was unusual because his philosophy was already on paper, in decades of articles, speeches and opinions. He could not easily disclaim it, and to his credit he did not try to. He engaged the senators' questions directly, defended his reasoning and debated constitutional theory at length.

The committee's Democratic majority, along with Republican Arlen Specter of Pennsylvania, used that openness to turn the hearings into a national seminar. Senators walked through his views on privacy, on the equal protection clause and sex discrimination, on civil rights law and on free speech. Former officials, law professors, civil rights leaders and others testified on both sides. Supporters included a former chief justice, Warren Burger, and many of the country's leading conservative legal scholars. Opponents included major civil rights organizations and a large group of law professors.

Then ordinary people started watching and calling. Polling during the hearings showed public opinion turning against the nomination, especially among Southern voters, including the Black voters whose support had been crucial to the Democratic Senate gains of 1986. Southern Democratic senators, who might once have supported a conservative nominee, heard from home. That, more than any single question, sealed the outcome.

In the middle of all this, Biden's own presidential campaign collapsed. He withdrew from the race in late September amid reports that he had used passages from other politicians' speeches without credit. He kept chairing the hearings.

On October 6, the committee voted 9 to 5 to recommend against confirmation, with Specter joining the Democrats. Two weeks later came the floor vote Bork had demanded. Fifty-eight senators voted no, including a handful of Republicans; forty-two voted yes, including two Democrats.

The strange coda about videotapes

One small, odd episode from the fight produced a law that still protects you.

During the nomination, a reporter for a Washington weekly newspaper obtained a list of the videotapes Bork's family had rented from a local store and published it. The list was unremarkable. But members of Congress across the spectrum were alarmed that anyone's rental history could be obtained and published so easily. In 1988, Congress passed the Video Privacy Protection Act, which bars video rental and sales companies from disclosing customers' viewing records without consent. Courts have since applied it to some online streaming services.

It is a fitting irony. A nominee accused of not recognizing a broad constitutional right to privacy became the occasion for a statutory one.

An older precedent than it looks

People sometimes describe the Bork vote as the first time the Senate rejected a nominee over his views. It was not, and the real first case is older than most people expect.

In 1795, George Washington nominated John Rutledge of South Carolina to be chief justice. Rutledge had already served on the Court and had been a delegate to the Constitutional Convention. He had also given a fiery public speech attacking the Jay Treaty with Britain, which the Senate had just approved. The Senate rejected him. His views, and doubts about his judgment, were the reason, and the Senate made that judgment barely six years after the Constitution took effect.

In the twentieth century, too, nominees had been turned down over their records. In 1969 and 1970, the Senate rejected two of Richard Nixon's nominees, Clement Haynsworth and G. Harrold Carswell, after fights over ethics and over their records on civil rights. What made 1987 different was not the reason for the vote but the scale of the public argument and the television cameras that carried it.

The case against what happened, fairly stated

The rejection of Bork is one of the most contested episodes in modern American politics, and fairness requires stating the critics' case at its strongest.

Conservatives argue that Bork was rejected not for a lack of qualifications, which nobody seriously disputed, but for his views, and that the campaign against him distorted those views. They point to the advertising, including a television ad narrated by the actor Gregory Peck, and to the tone of Kennedy's speech. They argue that the episode began a long escalation in which each party has used ever more aggressive tactics on judicial nominations, culminating in the Senate's refusal to give Merrick Garland a hearing in 2016, the rushed confirmation of Amy Coney Barrett days before the 2020 election, and the end of the filibuster for nominations in 2013 and 2017.

Some of that argument holds up. The campaign against Bork did include exaggeration. And escalation is real: each side remembers the other's worst moment and treats it as permission.

Here is the answer, as I see it. The Constitution gives the Senate the power to advise and consent; it says nothing to limit what senators may consider. A nominee's views on the meaning of the Constitution are the most relevant thing about him, especially for a lifetime seat on a closely divided Court. Bork's opponents did not invent his views; they quoted them. And the vote was not a party-line ambush: Republicans voted against him and Democrats voted for him. What changed in 1987 was not the Senate's power but its willingness to use that power in public, with the public watching and weighing in. That is closer to democracy than the quieter confirmations that came before it.

What came next

After Bork, Reagan nominated Douglas Ginsburg, another appeals judge, who withdrew within days after reports that he had smoked marijuana as a law professor. The third nominee was Anthony Kennedy, a federal appeals judge from California. The Senate confirmed him 97 to 0 in February 1988.

Kennedy turned out to be the Court's swing vote for three decades. He co-wrote the 1992 joint opinion in Planned Parenthood v. Casey that reaffirmed the core of Roe v. Wade, and he wrote the 2015 majority opinion in Obergefell v. Hodges recognizing a constitutional right to same-sex marriage. Neither outcome was likely with Bork in the seat. When Kennedy retired in 2018 and was replaced by Brett Kavanaugh, the Court's balance moved sharply, and in 2022 it overruled Roe and Casey in Dobbs v. Jackson Women's Health Organization.

That chain shows what a single confirmation vote can decide. It also shows that the power of a Senate majority is not the power to choose the nominee; it is the power to say no, and to shape whom a president sends next.

What it means for the Senate in 2027

Democrats won the Senate on November 3, 2026, and will hold the majority when the new Congress is sworn in on January 3, 2027, with Donald Trump in the White House. Judicial nominations will be one of the sharpest tests of that majority. The Senate's control means control of the Judiciary Committee's agenda and of the floor.

There are lessons in 1987 for how that power should be used. Base opposition on the record, quoted accurately. Hold hearings that inform the public instead of performances for clips. Be willing to confirm nominees who are qualified and within the mainstream even when they are conservative, and be clear about why a nominee falls outside it when one does. And remember that the public watched in 1987 and its views decided the outcome. A Senate that makes its case in the open, on the merits, is harder to accuse of mere obstruction.

What you can do

• Watch the Senate's votes on judges. The court watch page lists Supreme Court opinions this term with the Court's own summaries, the emergency docket, and Senate votes on judges. Bookmark it before the new Congress begins.
• Read the record yourself. Our topic page on the courts collects reporting on nominations, rulings and judicial power, so you can read a nominee's record rather than someone's summary of it.
• Tell your senators what you expect. Use the representatives lookup to find your two senators and call their offices. Ask a specific question: will they insist on full hearings for every lifetime nominee, and on what basis will they vote?
• Follow the new majority. The page on the new majority follows how the incoming Senate organizes its committees and uses its power.

Robert Bork wanted his rejection on the record, and he got it. So did the forty-two senators who voted for him and the fifty-eight who did not. That is the whole idea of advice and consent: not that the Senate always gets it right, but that every senator has to say, out loud and with a name attached, what kind of Court they want.