The Nine [9]
Less than a year later, on June 26, 1987, Lewis Powell resigned, and Reagan promptly named Bork as his replacement. A great deal had changed, however, including the Senate itself, which was now led by a Democratic majority. Reagan’s popularity had slipped, thanks largely to the Iran-Contra affair, which had become public at the end of 1986. There was no Rehnquist nomination to distract from a fight over a new justice. And the seat at stake was not that of Burger, who had become a reliable conservative vote, but that of Powell, who was the swing justice of his day and the fifth vote for the majority in Thornburgh and other abortion rights cases. Bork himself was an ornery intellectual, with a scraggly beard and without any natural ethnic or religious political base. For Democrats, in short, he was an inviting target.
More than anything, the fight over Bork’s nomination illustrated that Meese and his allies had done a better job of persuading themselves of the new conservative agenda than they had of convincing the country at large. In truth, many of the Warren Court precedents—the ones Bork had attacked for so long—remained popular with the public and, consequently, in the Senate. By 1987, the Miranda warnings were deeply ingrained in the culture, not least because of their endless repetition on television police dramas; the word privacy may not have appeared in the Constitution but Bork’s criticism of that right—and his defense of Connecticut’s right to ban the sale of birth control—sounded extreme to modern ears.
Most of all, though, racial equality (if not affirmative action) had become a bedrock American principle, and Bork had simply backed the wrong side during the civil rights era. In 1963, he had written a notorious article for the New Republic in which he had assailed the pending Civil Rights Act. Forcing white barbers to accept black customers, Bork wrote, reflected “a principle of unsurpassed ugliness.” More than his views about privacy and abortion, it was Bork’s history on race that doomed his nomination. The key block of voters in the Senate were moderate Democrats from the South like Howell Heflin of Alabama, who were actually sympathetic to Bork’s cultural conservatism. But these senators were all elected with overwhelming black support—and they would not abide views that, fairly or not, sounded racist. Bork ultimately lost by a vote of 58–42.
Enraged by the attacks on Bork, Reagan had said he would nominate a replacement for Bork that the senators would “object to as much as the last one.” So Meese and his allies tried to foist a potentially even more conservative, and a much younger, nominee on the Senate, Douglas H. Ginsburg, a recent Reagan appointee to the D.C. Circuit. But Ginsburg’s nomination collapsed over a few tragicomic days, following revelations that the law-and-order judge had smoked marijuana as a professor at Harvard Law School.
Howard Baker now stepped into the process. A former senator who had been brought in as chief of staff to steady the White House after the Iran-Contra revelations, Baker had little interest in the ideological groundbreaking that Meese was leading at the Justice Department. Baker was an old-fashioned conservative who wanted a justice in his own mold, a believer in judicial restraint. With the White House reeling from multiple fiascos, Baker just wanted to pick someone who would be confirmed—a conservative, to be sure, but not necessarily someone who would please Meese and the other true believers. The call went out to Anthony M. Kennedy, a thoughtful and earnest judge on the Ninth Circuit from Sacramento. He was confirmed quickly and without incident.
George H. W. Bush served as a transitional figure between the old Republican Party and the new. He was born to the country club GOP of his father, the cautious and corporate senator from Connecticut, but the forty-first president was elected in 1988 courtesy of the evangelical and other hard-core conservatives who were increasingly dominating the party. In the Reagan