When I was a teenager and learned that a movie called Fall of the Roman Empire was going to be on television I demanded to see it, expecting Attilla the Hun and lots of wars. When the first scenes featured Marcus Aurelius in a victory parade I scurried to the Golden Home and High School Encyclopedia and read about him. Discovering that he died in 180 AD and knowing Rome fell completely in 476 I braced myself for a very long movie. The movie didn't get anywhere near 476. It covered the same historical era as Russell Crowe's Gladiator. I was angry about the misleading title for decades. Eventually I realized the title made sense. The death of Marcus Aurelius was the beginning of the fall and nothing ever stopped the descent for the Western Roman Empire. 1987 may be the beginning of the fall of American Republican conservatism-or at least many people might think so right now. At the beginning of 1987 Republicans were riding high with President Ronald Reagan. He won two landslides, cut taxes and stood up to enemies worldwide. In 1986 he got conservative Antonin Scalia on the Supreme Court and elevated William Rehnquist to Chief Justice. When Lewis Powell, who had cast the deciding vote for 15 years to decide all 5-4 cases the wrong (liberal) way announced his retirement Republicans prepared to start winning 5-4 court decisions. Reagan nominated the most intellectual conservative ideologue available: Robert Bork. Every aspect of Bork's life was examined by the Senate and media. Someone looked through his trash. Someone found the list of videos he had rented. He had to explain why he bought a house in a racist neighborhood in 1954 and how he might decide a case involving the price of Budweiser Beer. In the end the Senate rejected him. We ended up with Anthony Kennedy, who continued Powell's legacy of being the deciding vote and has come to relish that position. That makes 1987 the beginning of the end for conservative Republicans. What would have happened if Bork had been approved? The first thing that would have happened is that the Democrats would have taken the 1988 Presidential election seriously. With at least two vacancies guaranteed within four years and four likely within eight the 1988 election would have been a referendum on whether conservatives could be allowed to dominate the court for the first time in 50 years. Instead top Democrats stayed out of that election (and the next one as well) so featherweights Michael Dukakis, Jesse Jackson, Sr. and Richard Gephardt could fight it out for the privilege of losing badly. George H. W. Bush won of course, and filled the two court vacancies with unknown David Souter and conservative Clarence Thomas. Democrats had to hold their noses and dull their sensibilities and elect their 1992 nominee or else. The other thing that would have happened is that the Democratic Senators who voted for Rehnquist, Scalia and Bork would have faced ultra-liberal primary opponents in their next campaign. Some can argue that only ultra-liberals are Democratic Senators now, but at least it took another 24 years to get that way. What would the court itself have been like though? Obviously Scalia and Bork would have voted the same way on almost every case, but the competition between them would have driven Rehnquist crazy. As it was Scalia, with a stronger personality than Rehnquist, quickly established himself as the court's dominant conservative. Rehnquist, as Chief, couldn't be too radical. The other conservatives (Byron White and Sandra Day O'Connor) were silent about their reasoning and ill-defined. The aggressive decisions Bork might have written could easily have chased White and/or O'Connor to the other side and turned victories into defeats during the first five years. The battle for the limelight between those two men would have continued. They might have tried to outdo each other with increasingly radical opinions (losing opinions most of the time.) Even if Bush had won the 1988 election and appointed Souter and Thomas that would not have cemented a conservative majority. They might have chased Souter away repeatedly and rarely made the concessions necessary to earn O'Connor or White's vote. If a Democrat won in 1988 of course two radical leftwing jurists would have replaced radical leftwingers William Brennan and Thurgood Marshall. A two-term Democrat starting in 1989 would have left office in 1997 with four young liberals joining moderate John Paul Stevens and winning every case while Bork and Scalia wrote radical vigorous dissents, winning only poetry points. When Stevens became the leader of the liberal faction in 1994 he wrote more reasonable decisions than the previous liberals. With four passionate young liberals he might not have been able to keep them from writing radical opinions. The court would have been so polarized that no rational position would ever be considered. A two-term Republican President serving from 1997-2005 might not have had a single vacancy to fill. Most likely O'Connor would have retired in 2003, so he would have been able to replace the weakest conservative with a stronger one, but still on the losing side. Another Republican serving from 2005-2009 might have replaced only Rehnquist. Worst of all, President Obama would be starting his second term by appointing a radical leftwinger to replace the most passionate rightwinger the court ever had. Conservatives, maybe 1987 wasn't so bad after all.
I have a hard time with cognitive recognition and dense text blocks are particularly daunting to me but I hope to try wading through the above sometime later. But, on the subject of Robert Bork, I've always had a sneaking suspicion the reason the liberals attacked him so viciously had less to do with his politics and more to do with his scruffy looking beard and a generally unkempt appearance. Liberals place a HUGE emphasis on superficial things like that. But no one was willing to admit to such pettiness out loud. The result was a truly great jurist who was denied a place on the SCOTUS and a country which would have greatly benefitted from his experience, wisdom and judgment had to do without it.
