Constitution Daily

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How Justice Kennedy replaced Powell (and Bork) at the Court

June 27, 2018 by Scott Bomboy


Thirty years ago, a unanimous Senate approved Anthony Kennedy’s nomination to the Supreme Court. The federal judge wasn’t Ronald Reagan’s first choice, but he was quickly approved.

With the retirement of Lewis Powell in 1987, Reagan faced his biggest challenge with the Senate over Supreme Court nominations. His final candidates to replace Powell included a federal judge, Robert Bork, and Senator Orrin Hatch. A constitutional provision about pay raises given by the Senate to Justices became a barrier to any Hatch nomination. So on July 1, 1987, Reagan said he would nominate Bork to replace Justice Powell.

A firestorm soon erupted as Senate Democrats, led by Ted Kennedy, attacked Bork’s position on legal matters they opposed. The Democrats also controlled the majority of the 100th Congress, and on October 23, 1987, Bork’s nomination was rejected by a 58-42 vote. His nomination was one of only four rejected by a Senate vote in the 20th Century.

President Reagan’s next nomination was a more moderate conservative, Douglas Ginsburg, but a controversy over Ginsburg’s marijuana use led to the judge withdrawing his name before he could be formally nominated.

Reagan then turned to a federal judge from the Ninth Circuit who had been appointed by Gerald Ford: Anthony Kennedy. Reagan knew Kennedy from Reagan’s days as California’s governor.

Reagan went to bat for the nominee when questions arose from conservatives about Kennedy’s views on privacy matters. Kennedy was unanimously approved by the Senate in a 97-0 after the failed Bork and Ginsburg nomination attempts on February 3, 1988.


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