• Donate
• Judicial Independence
• Attacks on the Courts
• "Activist" Judges
• When Radicals Attack
• What's at Stake?
• What can you do?
• State Courts
• Justice for All Education Project
• Resources
• Request Materials

Disaster Averted: The Bork Nomination

There is one recent example of the Senate playing a role in preventing an extreme nominee from taking a seat on the Supreme Court. In 1987, President Reagan nominated Judge Robert Bork to the Court. Bork did not believe that there was a constitutional right to privacy and, as a judge on the federal Court of Appeals for the D.C. Circuit, had voted to uphold so-called sodomy laws. Opposition to the Bork nomination resulted in the Senate rejecting Bork’s confirmation by a 58-42 vote. Justice Anthony Kennedy was eventually confirmed to fill the vacancy. Sixteen years later, Kennedy wrote the decision for the Court in the landmark Lawrence v. Texas case that struck down sodomy laws and recognized a constitutional right to personal autonomy in intimate matters, including consensual sexual conduct.

In the years since his failed nomination, Bork has made his extreme views even clearer, condemning judges who recognize equal marriage rights as committing “judicial sin.” He has written in support of a constitutional amendment prohibiting marriage for same-sex couples, and turns up his nose at the idea that gay, lesbian, bisexual and transgender Americans are “normal.”

To say that Justice Kennedy is preferable to a Justice Bork is an understatement. Without opposition from senators to the Bork nomination, things might have turned out very differently.

Close, But Not Enough: Clarence Thomas

In 1991, Supreme Court Justice and civil rights giant Thurgood Marshall retired from the Court at the age of 83. President Bush the elder nominated Clarence Thomas to replace Marshall.

Thomas was just 43 years old and not very experienced. He had served as a federal judge on the D.C. Circuit for only one year prior to his nomination. At first, opposition to his nomination focused on concerns that a Justice Thomas would be an opponent of civil rights and would work to unravel the legacy Marshall had helped create. Ultimately, opposition to the nomination coalesced around allegations that Thomas had sexually harassed Anita Hill, a lawyer who had previously worked for him.

After Hill gave specific and graphic testimony about Thomas’ alleged harassment, it seemed that the nomination was doomed. However, Thomas managed to squeak through the Senate, gaining confirmation by a narrow 52-48 vote. Just three senators made the difference.

Once he joined the court, Thomas quickly established himself as a member of the Court’s extreme right wing, closely allied with Justice Antonin Scalia. Thomas has voted against equal rights for gay, lesbian, bisexual and transgender Americans in cases like Boy Scouts of America v. Dale), Romer v. Evans, and Lawrence v. Texas.

To find out more about GLBT rights: