Senate Rejects Robert Bork Supreme Court Nomination 42-58, First Ideological Rejection in Nearly a Century

The United States Senate rejected President Reagan’s nomination of Robert Bork to the Supreme Court by a vote of 42-58 on October 23, 1987, marking the first time in nearly a century that the Senate rejected a Supreme Court nominee primarily on the basis of ideology rather than qualifications or ethics. The defeat represented a significant setback for the conservative legal movement’s effort to entrench Chicago School antitrust abandonment and originalist constitutional interpretation in Supreme Court doctrine, though it ultimately spurred the movement to develop more sophisticated judicial selection and confirmation strategies that would prove devastatingly effective over the following three decades.

Reagan nominated Bork on July 1, 1987, to replace Justice Lewis F. Powell Jr., a moderate conservative who had often served as the Court’s “swing vote” on contentious cases involving abortion rights, affirmative action, and other divisive issues. Bork’s nomination represented an opportunity to shift the Court decisively rightward, replacing a moderate with the conservative legal movement’s leading intellectual architect of antitrust abandonment, deregulation, and originalist constitutional interpretation. Reagan, Heritage Foundation, the Federalist Society, and other conservative organizations viewed Bork’s confirmation as essential to locking in the conservative legal revolution they had been building since the 1970s.

However, Bork’s extensive paper trail—including his 1978 book “The Antitrust Paradox,” his academic writings on constitutional law, and his five years of judicial opinions on the DC Circuit Court of Appeals—provided opponents with abundant evidence of his conservative ideology. Senator Edward Kennedy delivered a famous speech on the Senate floor within hours of the nomination announcement, warning that “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.”

The opposition campaign against Bork proved remarkably effective, coordinating civil rights organizations, women’s groups, labor unions, environmental organizations, and liberal advocacy groups in a sustained public education effort about Bork’s record and judicial philosophy. Groups highlighted Bork’s criticism of the Supreme Court’s privacy rights jurisprudence (including the cases establishing constitutional protections for contraception and abortion), his narrow interpretation of civil rights laws, his opposition to the “one person, one vote” principle in reapportionment cases, and his permissive approach to corporate consolidation through antitrust abandonment.

During confirmation hearings before the Senate Judiciary Committee, Bork’s testimony sometimes contradicted or qualified positions he had taken in his academic writings, leading critics to question his candor. Bork attempted to present his judicial philosophy as merely originalist interpretation of the Constitution’s text and framers’ intent, but opponents documented numerous instances where Bork’s originalism conveniently aligned with conservative policy preferences while contradicting progressive interpretations also grounded in constitutional text and history.

The final Senate vote saw two Democrats (David Boren of Oklahoma and Ernest Hollings of South Carolina) and 40 Republicans vote for confirmation, while 52 Democrats and six Republicans (Lowell Weicker of Connecticut, John Warner of Virginia, Robert Packwood of Oregon, Arlen Specter of Pennsylvania, John Chafee of Rhode Island, and Charles Mathias of Maryland) voted against. The 42-58 defeat represented the largest margin of rejection for a Supreme Court nominee to that date.

Bork’s rejection had profound consequences for conservative judicial strategy. Rather than nominating another judge with an extensive public record of conservative positions, Reagan next nominated Douglas Ginsburg, whose nomination was quickly withdrawn after revelations of marijuana use. Reagan then nominated Anthony Kennedy, a more moderate conservative without Bork’s extensive paper trail, who was confirmed unanimously 97-0 in February 1988. The conservative movement learned from Bork’s defeat that Supreme Court nominees should avoid creating extensive records of controversial positions before nomination—a lesson that would shape future Republican judicial selection.

The Bork nomination battle led directly to increased investment in conservative judicial infrastructure. The Federalist Society, founded just five years before Bork’s nomination, dramatically expanded its activities to build networks connecting conservative law students, practicing lawyers, and judges. The organization developed strategies for identifying and credentialing conservative judicial candidates who could withstand confirmation scrutiny while maintaining conservative commitments. Conservative donors, particularly Richard Scaife through his foundations, increased funding for organizations focused on judicial selection and confirmation battles.

The term “borking” entered the political lexicon to describe aggressive opposition campaigns against judicial or political nominees based on their records and stated positions. Conservatives used the term pejoratively to suggest that Bork had been treated unfairly, though opponents argued that scrutinizing a Supreme Court nominee’s judicial philosophy was entirely appropriate given the lifetime tenure and enormous power of Supreme Court justices. The debate over whether examining nominees’ ideologies constituted legitimate oversight or improper “borking” would continue through subsequent confirmation battles.

Despite his nomination’s defeat, Bork’s intellectual influence on antitrust law persisted. The consumer welfare standard he pioneered in “The Antitrust Paradox” remained the dominant framework for antitrust enforcement, enabling continued corporate consolidation across every sector of the American economy. His broader originalist approach to constitutional interpretation became increasingly influential within conservative legal circles and eventually among conservative Supreme Court justices, even though Bork himself never served on the Court.

Bork resigned from the DC Circuit Court of Appeals shortly after his Supreme Court nomination was rejected and returned to private life as a scholar and advocate. He became a fellow at the American Enterprise Institute, a conservative think tank, where he continued writing and speaking about legal issues. He remained an influential figure in conservative legal circles, mentoring younger conservative lawyers and judges who would eventually achieve the conservative judicial transformation that eluded Bork personally.

The defeat also intensified conservative movement grievance narratives that would fuel increased political mobilization. Conservative activists pointed to Bork’s rejection as evidence of liberal opposition to conservative legal principles and used the episode to justify increasingly partisan approaches to judicial confirmations. When Republicans gained Senate control in subsequent years, they would cite Bork’s treatment as justification for blocking Democratic judicial nominees and eventually for eliminating the filibuster for Supreme Court nominations.

Leonard Leo and the Federalist Society studied the Bork confirmation battle carefully, developing more sophisticated strategies for future Supreme Court confirmations. These strategies emphasized selecting nominees with strong conservative credentials but limited public records; preparing nominees extensively for hearings to avoid contradictions or controversial statements; coordinating comprehensive support campaigns involving conservative organizations, media, and donors; and ensuring that conservative Senators maintained absolute unity in supporting conservative nominees.

The lessons learned from Bork’s defeat proved devastatingly effective when applied to later Supreme Court confirmations. Every Republican Supreme Court nominee from 1990 forward—David Souter (1990), Clarence Thomas (1991), John Roberts (2005), Samuel Alito (2006), Neil Gorsuch (2017), Brett Kavanaugh (2018), and Amy Coney Barrett (2020)—reflected strategic lessons from Bork’s failed nomination. Roberts, Alito, Gorsuch, Kavanaugh, and Barrett all carefully avoided creating extensive public records of conservative positions before nomination, testified cautiously at their confirmation hearings, and benefited from sophisticated conservative support campaigns.

By 2025, the conservative Supreme Court majority that Bork’s nomination had sought to establish in 1987 had been achieved through the strategic application of lessons learned from his defeat. Six conservative justices implemented many of the legal positions Bork had advocated: skepticism of privacy rights, narrow interpretation of civil rights protections, deference to corporate power, and originalist approaches to constitutional interpretation. The conservative capture of the Supreme Court that Bork’s nomination had attempted directly succeeded through more strategic nominee selection and confirmation management.

Bork’s rejection in 1987 thus represented a temporary setback for conservative judicial capture rather than a permanent defeat. The conservative legal movement responded by building more sophisticated infrastructure, developing better nominee selection criteria, and refining confirmation strategies. These improvements, combined with Republican control of the Senate during key periods and the Federalist Society’s increasingly effective judicial pipeline, eventually achieved the conservative Court that Bork’s nomination had sought to establish. The 54-year capture system’s judicial component ultimately succeeded despite Bork’s personal failure, demonstrating the movement’s institutional resilience and strategic learning capacity.