Anthony Kennedy has retired from the United States Supreme Court and Judge Brett Kavanaugh has been nominated to replace him. We all know how nasty the nomination process has become for Supreme Court Justices. Many argue that the current level of nastiness goes back to the failed nomination of Robert Bork in 1987. I would argue that it actually started sooner.
Few remember that Anthony Kennedy was the third-choice of President Ronald Reagan for the U. S. Supreme Court judicial seat vacated by the retirement of the Hon. Lewis Powell in 1987. Second choice for that seat was Douglas Ginsburg (no relation to Ruth Bader Ginsburg who currently sits on the high Court), who withdrew after some youthful marijuana use came to light. Reagan’s first choice had been Robert Bork.
I think we are going to be hearing a lot more about Judge Bork and the circus that surrounded his 1987 nomination. Judge Bork’s failed confirmation vote and the process that led to it has become known as “getting Borked”. Did you know that someone got “Borked” before Bork? That person was Professor William F. Harvey.
The Harvey story was big news in my part of the world. For starters, he was the former Dean of my law school (then called the Indiana University School of Law at Indianapolis) who was a full time professor in the years I attended. His particular field of study was civil procedure. He was widely considered an authority on the Federal Rules of Civil Procedure and in addition authored the definitive reference work on the Indiana Rules of Civil Procedure after their promulgation in the early 1970s.
Well along in a successful career, Dean Harvey was widely considered to be “a lawyer’s lawyer”. He was also a staunch conservative, particularly in terms of his legal philosophy. In short, Harvey believed in the system and that the system had to be preserved and respected no matter what a particular litigator’s preferred outcome might be. A ruling might come along that favored a cause friendly to Harvey, but if that ruling did violence to the law along the way it was a bad ruling.
His reputation among my fellow students was that he was a tough professor but a fair one. He was old-school in that I never saw him in anything other than a suit and tie. But despite his stern approach he won many “Black Cane” awards over the years, an annual award for best professor based on a vote by students. In short, he was the kind of law professor who was in short supply even then.
He first became known outside of legal circles in 1982 when President Reagan appointed him to the board of the Legal Services Corporation, a Federal entity formed to assist in providing legal representation to the poor. As a recess appointment (one made when the Senate was not in session) he replaced a person some readers might remember from another context: one known then as Hillary Rodham.
Harvey’s appointment to that board was highly unpopular among those who were still smarting over the recent loss of of President Jimmy Carter in his bid for reelection. Given that warm-up round, it was inevitable that fireworks would start when Reagan nominated Dean Harvey to the United States Court of Appeals for the Seventh Circuit in 1985.
The Circuit Court of Appeals is the mid-level of the Federal bench. It takes appeals from the lowest level of federal courts – the United States District Courts – which are where the initial trials are held. The United States Supreme Court is, of course, at the top of that three-level hierarchy. Nominees to the Supreme Court have often come from the Court of Appeals bench (as did Judge Bork and Judge Kavanaugh who is the most recent nominee).
But back to the Borking of Professor Harvey. The leaks and character assassination from interest groups began early. One example was a news report that Harvey had billed Legal Services Corp. for his time while riding the train from Indianapolis to Washington, DC, thus insinuating that he was cheating the taxpayers. It was true – Harvey did not like to fly and took the train. Because the train took a long time, Harvey explained that he took a bundle of billable work along on these trips and used that travel time productively.
The American Bar Association gave Dean Harvey a “Not Qualified” rating, based primarily on “judicial temperament”. In the rating system in effect in those days, Well Qualified, Qualified and Not Qualified were the choices. Given Harvey’s impeccable reputation and the esteem in which he was held among those who knew him, it was generally believed that the ABA’s rating had more to do with Harvey’s political leanings than his probable judicial abilities.
In any event, Dean Harvey’s nomination was blocked in Congress along party lines and he finally withdrew his name in October of 1985.
For anyone who thinks today’s vitriol that swirls around judicial nominees is new, I invite you to read this 1985 article from the Los Angeles Times. Curiously, it incorrectly states that Dean Harvey’s nomination was successful. It was not.
Some of us with enough gray hair recall a time when judicial nominations were more or less routine affairs. Now it is true that there have been many battles over Senate consent to Supreme Court Appointees. An early example was the rejection of George Washington’s nomination John Rutlidge in 1795 after he had taken political positions ad odds with those of the Washington Administration. Interestingly, Washington’s own party deep-sixed that nomination.
But from after World War II and through the 1970s, it seemed that only things like allegations of ethics issues (Abe Fortas) apparent sympathy for segregation (Clement Haynsworth) or an arguably undistinguished judicial record (G. Harold Carswell) would suffice to defeat a judicial nomination. That all changed during the term of Ronald Reagan and the process has done nothing but get more vitriolic since.
One way of looking at this would be that those unhappy at the prospect of a Justice Kavanaugh have been enjoying a holiday from Robert Bork for the past thirty years. Actually, he died in 2012, which would have led to another nomination during the Obama Administration. Karma? But Bork was not confirmed and Kennedy was, much to the consternation of both sides of political debate at varying times during his career.
There is only one certainty as we go forward with the debate over the nomination of Judge Kavanaugh (to whom I am not related and whose name spelling I will continue to struggle with): we all need to buckle up, because this is going to be a rough ride all around.
Miller County (Missouri) Museum And Historical Society
A news article following Dean Harvey’s death was published in November of 2016 by The Indiana Lawyer and can be read here.