Edward Kennedy – The Intelligent Collector Magazine

This oversized photograph of the U.S. Supreme Court, circa 1984, is signed by all nine justices, including Lewis F. Powell Jr. It realized $4,481.25 at an April 2011 Heritage auction.

By Jim O’Neal

When Justice Lewis F. Powell Jr. unexpectedly announced his retirement in June 1987, no commentator failed to emphasize the implications for the future of the Supreme Court. The New York Times stated the obvious: “Powell’s resignation gives President Reagan a historic opportunity to shape the future of the Court.” Justice Powell had played a pivotal role as the tie-breaking vote on controversial issues such as abortion, affirmative action and separation of church and state.

Yet Powell was not merely a simple tie-breaker. Since he frequently swayed the court’s decision from one ideological camp to another by virtue of his swing vote, he was viewed as mainstream. As a result, President Reagan attempted to portray Powell’s replacement, Robert Bork, as neither conservative nor liberal, stressing his “evenhanded and open-minded approach to the law.”

The president’s lack of success was immediately evident when Senator Edward Kennedy – only 45 minutes after Bork’s appointment – fired the opening salvo against Bork’s record on abortion, civil rights and criminal justice. Kennedy declared, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would be forced to sit at segregated lunch counters, rogue policemen could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, and artists could be censured at the whim of government.”

Once Kennedy unleashed these polemics, there was no turning back. Southern Senators were intimidated by the possible loss of black voters and liberals in the Senate were eager for a good fight after eight years of frustrating losses to conservatives.

Despite being confirmed unanimously for the U.S. Court of Appeals, Judge Bork was stepping into a veritable political hornets’ nest and he was the wrong person in the wrong spot at the wrong time! His copious scholarly writings – an asset in academia – and his lucidly crafted, elegantly penned opinions on the appellate bench were red meat in the hands of hostile interest groups.

Bork with President Ronald Reagan in 1987.

Moreover, Bork’s personal appearance and demeanor seemed as suspect as his ideology. His devilish beard and turgid academic discourses did not endure him to the public or wavering Senators. His detailed, scholarly, lecture-like answers to every single question would be considered naive today … where nominees are well versed in the art of non-answers to tough questions, and grilled by “murder boards” designed to prepare careful answers to virtually everything the nominee has written or spoken since puberty. Today’s Google/Facebook generation of staffers can unearth obscure facts that might be even slightly contentious.

Judge Bork’s nomination was rejected by a resounding 42-58 vote. After being transfixed by the riveting testimony, I personally believe that even if Judge Bork were given another try today (he died in 2012), the outcome would be similar. He had such a high regard of his superior legal acumen and was so openly dismissive of the twits on the Senate Judiciary, it would be another verbal combat that would end just as badly.

It would be a perfect scenario for a pay-for-view cable TV spectacle, especially for Supreme Court nerds like moi.

Intelligent Collector blogger JIM O’NEAL is an avid collector and history buff. He is president and CEO of Frito-Lay International [retired] and earlier served as chairman and CEO of PepsiCo Restaurants International [KFC Pizza Hut and Taco Bell].

This Rehnquist Supreme Court photograph, circa 1989, is signed by all nine justices, including Antonin Scalia and William H. Rehnquist. It realized $1,171.25 at an April 2015 auction.

By Jim O’Neal

On June 17, 1986 – to the surprise of his colleagues, the public and President Reagan – Chief Justice of the U.S. Supreme Court Warren Burger submitted his resignation. After 17 years as head of the U.S. federal court system and within months of his 79th birthday, Burger wanted to devote all of his time to organizing ceremonies for the bicentennial of the U.S. Constitution in 1987.

Almost immediately, President Reagan announced his choice for Burger’s replacement: sitting Associate Justice William H. Rehnquist. Judge Antonin Scalia of the U.S. Court of Appeals for Washington, D.C., was selected to fill the vacant position. The Burger court had been surprisingly active in civil rights and President Reagan resolved to fill the vacancies with conservative, strict constitutionalists.

Rehnquist certainly met these criteria, as his 14-plus years on the bench validated. He made that abundantly clear during his confirmation hearings that opened July 30, 1986, by telling the Judiciary Committee they should not expect any change in his jurisprudence. His years on the court were on the record.

His primary opponent, Senator Edward Kennedy, acknowledged this, but also assailed the chief justice nominee in harsh terms, thundering, “By his own record, he is too extreme on race, on women’s rights, separation of church and state, and too extreme to be chief justice.” Kennedy’s assertions set the tone for two weeks of stormy testimony. No one dared to dispute Rehnquist’s powerful intellect or keen understanding of the law. He was just “out of the mainstream” – a standard ploy for any opposition.

After three months of divisive, acrimonious debate in the full Senate, he was confirmed 65-33. The 33 nays were the most votes ever cast against a nominee who won confirmation. Charles Evans Hughes prevailed in 1930 after a vote of 52-26, the previous record.

Scalia had a much easier time, perhaps because the partisan vitriol was exhausted on Rehnquist. The New Republic had earlier written, “A Scalia nomination makes political sense.” And a White House official had exclaimed, “What a political symbol! Nino would be the first Italian-Catholic on the court. He has nine children and everyone likes him. He’s a brilliant conservative. What more do you want?” Moreover, the 50-year-old Scalia was 10 years younger than the other possible candidate, Judge Robert Bork.

Even ideological foes were hard-pressed to challenge Scalia’s meritorious credentials. A product of New York public schools, he tied for first at Xavier High School, graduated at Georgetown University as valedictorian summa cum laude, and at Harvard Law was editor of the law review and a postgraduate fellow. This was followed by the law faculty at University of Virginia and appointments at Georgetown Law, the American Enterprise Institute, Stanford Law, and the University of Chicago Law School.

He sailed through the Judiciary Committee 18-0 and the full Senate 98-0. He served on the Supreme Court until his death last year. Strict constitutional conservatives are still in mourning over his loss.

The upcoming hearing on March 20 is designed to select his replacement. We will all have a ringside seat at what promises to be another Supreme Court soap opera, with gavel-to-gavel TV coverage ad nauseam.

Tag: Edward Kennedy

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