Robert Bork became a political verb, Antonin Scalia one of the most influential Supreme Court Justices of the last twenty years, if not in history. But while both men had their shot at the Court, only one made it.
In 1986, Warren Burger stepped down, and the Reagan White House nominated sitting Associate Justice William Rehnquist to replace him. This would open up a vacancy, which Bork and Scalia, who were both sitting Judges on the D.C. Circuit Court, were the frontrunners to fill. Ronald Reagan ultimately chose Scalia due to his youth, writings and the fact that he would be the first Italian-American on the Court. Both Rehnquist and Scalia were confirmed, 65-33 and 98-0 respectively, and Bork was promised the next open spot.
That occurred in 1987, with the retirement of Lewis Powell. However, things had changed: Democrats controlled the Senate, Reagan's Administration was mired in the Iran-Contra scandal, and Bork himself was a polarizing and abrasive nominee, whose addition to the Court would have tipped the balance firmly to the conservatives. After a series of hearings, Bork was rejected, 58-42, by a bipartisan vote, and ultimately the more moderate Anthony Kennedy would receive the seat.
But what if the nominations were flipped?
Rehnquist received much of the fire from Democrats, and he was still confirmed by a filibuster-proof margin in the Senate. Republicans had a 53-47 majority, and were able to wrangle 16 Democrats for a vote for Rehnquist, while Scalia sailed through nearly unanimously. While Bork took fire the next year, a good chunk of that was self-inflicted, with Bork expounding at length as to his view on Constitutional issues, which Democrats used as attacks.
However, if Bork had been nominated alongside Rehnquist, no matter how abrasive his personality, I believe that he would have been confirmed. There would have been strong pressure from the White House for the GOP Senate majority to confirm their nominee, and in a less partisan environment, I think that Bork might have even gotten Democratic support-in '87, Bork received two Democratic "Yea" votes, and I doubt that he would have done worse than, say, Neil Gorsuch, who was confirmed 54-45, with a trio of Democratic votes for him.
By the time of the Powell retirement, things have changed. But so much of the Bork nomination seemed to be a problem with the nominee himself. Yes, there were outside factors, but Bork did his best to sink his own ship. Scalia, on the other hand, is a much more likeable figure, more charming, without as much of the Bork baggage of Watergate, and less controversial writings, even with an additional year on the D.C. Circuit. Additionally, Bork had no natural constituency, whereas Italian-Americans would have placed pressure on Representatives and Senators to back Scalia. Scalia again received a nearly unanimous vote, and while Ted Kennedy could try and deliver "In Antonin Scalia's America..." it feels like it would fall flatter than with Bork. And while not unanimous, again, I can't see Scalia doing anything worse than Gorsuch's 54 in a confirmation vote, or even somewhere along the 58-42 that Samuel Alito received in his confirmation vote in 2005.
Assuming that both Bork and Scalia would be confirmed, what would the Supreme Court look like? What would the reaction to the Court be, amongst both liberals and conservatives?
In 1986, Warren Burger stepped down, and the Reagan White House nominated sitting Associate Justice William Rehnquist to replace him. This would open up a vacancy, which Bork and Scalia, who were both sitting Judges on the D.C. Circuit Court, were the frontrunners to fill. Ronald Reagan ultimately chose Scalia due to his youth, writings and the fact that he would be the first Italian-American on the Court. Both Rehnquist and Scalia were confirmed, 65-33 and 98-0 respectively, and Bork was promised the next open spot.
That occurred in 1987, with the retirement of Lewis Powell. However, things had changed: Democrats controlled the Senate, Reagan's Administration was mired in the Iran-Contra scandal, and Bork himself was a polarizing and abrasive nominee, whose addition to the Court would have tipped the balance firmly to the conservatives. After a series of hearings, Bork was rejected, 58-42, by a bipartisan vote, and ultimately the more moderate Anthony Kennedy would receive the seat.
But what if the nominations were flipped?
Rehnquist received much of the fire from Democrats, and he was still confirmed by a filibuster-proof margin in the Senate. Republicans had a 53-47 majority, and were able to wrangle 16 Democrats for a vote for Rehnquist, while Scalia sailed through nearly unanimously. While Bork took fire the next year, a good chunk of that was self-inflicted, with Bork expounding at length as to his view on Constitutional issues, which Democrats used as attacks.
However, if Bork had been nominated alongside Rehnquist, no matter how abrasive his personality, I believe that he would have been confirmed. There would have been strong pressure from the White House for the GOP Senate majority to confirm their nominee, and in a less partisan environment, I think that Bork might have even gotten Democratic support-in '87, Bork received two Democratic "Yea" votes, and I doubt that he would have done worse than, say, Neil Gorsuch, who was confirmed 54-45, with a trio of Democratic votes for him.
By the time of the Powell retirement, things have changed. But so much of the Bork nomination seemed to be a problem with the nominee himself. Yes, there were outside factors, but Bork did his best to sink his own ship. Scalia, on the other hand, is a much more likeable figure, more charming, without as much of the Bork baggage of Watergate, and less controversial writings, even with an additional year on the D.C. Circuit. Additionally, Bork had no natural constituency, whereas Italian-Americans would have placed pressure on Representatives and Senators to back Scalia. Scalia again received a nearly unanimous vote, and while Ted Kennedy could try and deliver "In Antonin Scalia's America..." it feels like it would fall flatter than with Bork. And while not unanimous, again, I can't see Scalia doing anything worse than Gorsuch's 54 in a confirmation vote, or even somewhere along the 58-42 that Samuel Alito received in his confirmation vote in 2005.
Assuming that both Bork and Scalia would be confirmed, what would the Supreme Court look like? What would the reaction to the Court be, amongst both liberals and conservatives?
