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Bloody Crossroads African-Americans and the Bork Nomination: a Bibliographic Essay J Howard University Digital Howard @ Howard University Selected Speeches J. Clay Smith, Jr. Collection 1-11-1992 Bloody Crossroads African-Americans and The Bork Nomination: A Bibliographic Essay J. Clay Smith Jr. Follow this and additional works at: http://dh.howard.edu/jcs_speeches Part of the Constitutional Law Commons Recommended Citation Smith, J. Clay Jr., "Bloody Crossroads African-Americans and The Bork ominN ation: A Bibliographic Essay" (1992). Selected Speeches. Paper 151. http://dh.howard.edu/jcs_speeches/151 This Article is brought to you for free and open access by the J. Clay Smith, Jr. Collection at Digital Howard @ Howard University. It has been accepted for inclusion in Selected Speeches by an authorized administrator of Digital Howard @ Howard University. For more information, please contact [email protected]. 173 "Bloody Crossroads" AFRICAN-AMERICANS and the BORK NOMINATION: A BIBLIOGRAPHIC ESSAY J. Clay Smith, Jr.* Two diverging traditions in the mainstream of Western political thought-one "liberal," the other "conservative"-have competed, and still_ compete, for control of the democratic process and of the American constitutional system; both have controlled the direction of our judicial policy at one time or another. - Alexander M. Bicke11 The clash over my nomination was simply one battle in-this long-running war for control of our legal culture. - Robert H. Bork2 On July 1, 1987 President Ronald Reagan announced his nomination of Judge Robert H. Bork to succeed Justice Lewis Powell * Professor of Law, Howard University School of Law. Alexander M. Bickel, The Morality Of Consent 3 (1975), hereafter, Morality Of Consent. 2 Robert H. Bork, The Tempting of America The Political Seduction of the Law 2 (1990), hereafter, Tempting of America. See also, Book Reviews Essays: Gerard V. Bradley, Slaying the Dragon of Politics with The Sword of Law: Bork's Tempting of America, 1990 Univ. of Ill. L. Rev. 243; Stephen L. Carter, Bork Redux, or How The Tempting of American Led The People To Rise And Battle For Justice, 69 Tex. L. Rev. 759 (1991); Lyle Denniston, Bark: The Tempting of America: The Political Seduction Of The Law, 88 Mich. ( L. Rev. 1291 (1990); Gene R. Nichol, Jr., The Tempting of America; The Political Seduction Of The Law, 76 Va. L. Rev. 337 (1990). as Associate Justice of the Supreme Court of the United States. 3 3 Ultimately, Anthony M. Kennedy, a judge on the Ninth Circuit, since May 30, 1975, filled the vacancy of Justice Lewis F. Powell, Jr., after Judge Douglas H. Ginsburg, of the District of Columbia Circuit, on October 14, 1986, asked the President to withdraw his nomination to the Supreme Court. Judge Ginsburg retained his seat on the circuit court. See Herman Schwartz, Packing The Courts 119-149 (1988); Ruth Marcus and Al Kamen, 1 Circuit Judges Top High Court List, Wash. Post, Oct~ 28, 1987, at A3; steven v. Roberts, Ginsburg Choice Renews Tension Between Factions in White House, N.Y. Times, Oct. 31, 1987, at 1; Stephen Wermiel, Judge Ginsburg Used Marijuana At Ttmes in Past, Wall St. J., Nov. 6, 1987, at 54; Steven V. Roberts, Critics Cautious On Judge's Record, N.Y. Times, Nov. 5, 1987, at B11; Linda Greenhouse, Cabinet Official Advises Ginsburg To Give Up Quest, N.Y. Times, Nov. 7, 1987, at 1; Michael Specter and James R. Dickenson, Ginsburg Withdraws as; Nominee to the Supreme Court, Wash. Post, Nov. 8, 1987, at 1. After Judge Ginsburg withdrew as a nominee to the Supreme court President Ronald Reagan nominated Judge Anthony M. Kennedy to the post, who was confirmed. William Raspberry, After Ginsburg--A Lesson for the President, Wash. Post, Nov. 9, 1987, at A17; Lou Cannon and Ruth Marcus, Judge Kennedy Likely Nominee, Wash. Post, Nov. 9, 1987, at 1; Again, a Nominee for the Court, Wash. Post, Nov. 12, 1987, at A22; Linda Greenhouse, Reagan Nominates Anthony 2 Kennedy To Supreme Court, N.Y. Times, Nov. 12, 1987, at 1; stuart Taylor, Jr., Judge Kennedy: Tilting Right but Not Far, N.Y. Times, Nov. 15, 1987, at 1; Helen Dewar and Ruth Marcus, Kennedy Hearings Set, Dec. 14, Wash. Post, Nov. 21, 1987, at A3; stuart Taylor, Jr., Speeches Offering Insight Into Judge Kennedy, N.Y. Times, Dec. 1, 1987, at 1; Nominee to Court Says Judges Should Avoid Making Policy, N.Y. Times, Dec. 2, 1987, at A26; Ruth Marcus and Helen Dewar, NOW Opposes Kennedy For Supreme Court,. Wash. Post, Nov. 20, 1987, at A3; Linda Greenhouse, Senators Predict Fast Confirmation of Judge Kennedy, N.Y. Times, Dec. 16, 1987, at 1; Linda Greenhouse, Judiciary Panel Focuses On Bork, N.Y. Times Dec. 17, 1987, at A24; Linda Greenhouse, Senate, 97 to 0 Confirms Kennedy to High Court, N.Y. Times, Feb. 4, 1988, at A18; Chester A. Higgins, Sr., Blacks Offer No opposition to Judge Kennedy, Wash. Afro­ American, Jan. 12, 1988, at 3. On February 5, 1988 Judge Bork resigned his seat on the District of Columbia Circuit Court of Appeals and return to private life as a consultant and a lawyer. Linda Greenhouse, Judge Bork Is Stepping Down To Answer Critics and Reflect, N.Y. Times, Jan. 15, 1988, at 1; Aaron Freiwald, Bork Finds Lucrative Niche in Law and Ideas, Wash. Legal Times, Dec. 12, 1988, at 1; Alan C. Miller, After Rejection There's Honorarium For Bork, Los Angeles Times, May 21, 1988, at Part 2, 10. Clarence Thomas, the chairman of the Equal Employment Opportunity Cormnission, replaced Judge Bork on the l 3 Judge Bork had been, on February 12, 1982, President Reagan's first appointment to the United states Court of Appeals for the District of Columbia Circuit. A former United States Solicitor General and long-time Yale University law professor, most observers regarded Judge Bork as a technically well qualified legal scholar. Yet two and one half months later his nomination was rejected decisively by the full Senate by a vote of fifty eight to forty­ two. 4 This annotated bibliographic essay is about a single Supreme Court nomination,· unique for the insight it provided into the ongoing battle for ideological control of the "legal culture" of our court system and the fate of the Constitution. It is intended to be used as a research tool by students of the judicial process. The annotation is composed of selected articles about African­ Americans the Bork nomination. One must ask whether the cross·roads of law and politics and the collisions that occur during the confirmation process for the Supreme Court is any more unique to the Bork nomination than other circuit court on April 30, 1990. 4 Linda Greenhouse, Bork's Nomination Is Rejected, 58-42; 'Reagan Saddened', N.Y. Times, Oct. 24,1987, at 1; The Message of Judge Bork's Defeat, Wash. Post, Oct. 24, 1987, at 30. {. 4 ( nominations to the court.s While some may differ on the subject, it is possible that the Constitution allows for this type of collision. Under Article II, section 2 of the Constitution the President is charged with the responsibility of selecting a person 5 See e. g. , The Carswell Vote; "What's Good For The Court ••• Would Be Good For The President, Wash. Post, April 9, 1970, at A18; Hearings of George Harrold Carswell and Clement F. Haynsworth, Jr., 91st Cong., 1st Sess., on Nomination of Haynsworth, of South Carolina, To Be Associate Justice of The Supreme Court of The United States, Sept. 16-19, 24-26, 1969; 91st Cong., 2d Sess., on Nomination of George Harrold Carswell, of Florida, To Be Associate Justice of the Supreme Court of the United States, Jan. 27-29, Feb. 2-3, 1970. Both nominations were rejected by the Senate. Carswell, Haynsworth Votes, Wash. Post, April 9, 1970, at 1. Spencer Rich, Senate Rejects Carswell, 51-45,' Wash. Post, April 9, 1970, at 1. The rejection of Judges Carswell and Haynesworth brought calls to The American Bar Association for reform in its role in selecting Supreme Court Justices, Lawrence E. Walsh, Selection of Supreme court Justices 56 A.B.A.J. 555 (June, 1970). See also, Laura Kalman, Abe Fortas 319, 355 (1990) (Defeat of the nominations of President Lyndon Johnson of Abe Fortas, to be Chief Justice, of The United States Supreme Court) i Hearings of Abe Fortas And Homer Thornberry, Before The Committee on Judiciary, U.s. Senate, 90th Cong., 2d. Sess., June 11-12, 16-20, 22-23 <. (1968); id., Part 2, 13-16, 1968. 5 ( to nominate to the United States Supreme Court. G Prior to the nomination, exactly what individual presidents have considered, with whom they have consulted, or the plans and strategies to achieve their constitutional objectives has remained a mystery, though patterns have been identified.? It is a mystery because there is nothing in the" Constitution that requires presidents to disclose the manner or the process in which they select the nominees. However, the act of selection is a political act, done by a person holding a political office, who nominates a candidate to the United States Senate, which is politically empowered by the people and the Constitution to give its advice and consent, or to withhold its consent, lacking the non-concurrence of a "two thirds of the Senators present."s Judge Bork has described his nomination to the United States Supreme Court in military terms: as being "one battle in this long­ running war for control of our legal culture.,,9 What war is he G u. S. Const., art. II, sec. 2 states, in relevant part: "The President ••• shall have Power, by and with the Advice and Consent of the Senate to ••• appoint ••• Judges of the Supreme Court •••• " 7 Henry J.
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