Original Intent and the Struggle for the Supreme Court

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This study examines the judicial philosophy of original intent and how the 1987 Robert Bork hearings impacted the judicial nomination and confirmation process. Although the debate had raged in the law schools for decades, the debate became public during Ronald Reagan’s second term. The Bork nomination was a merging of jurisprudence and politics. Following Bork’s rejection, many opponents of original intent argued that originalism was dead. The purpose of this research was to determine if the original intent debate still exists and how the Bork episode affected the nomination and confirmation process.

This study examines the scholarly literature on the emergence of the original intent debate, the exchange of words between Edwin Meese and William Brennan, the confirmation process prior to 1987, the Bork hearings, how the Bork hearings impacted post-Bork nominations and confirmations, Bill Clinton’s nominees to the federal judiciary, and the current status of original intent. Interviews with participants on both sides of this debate are included in this study.


“In Federalist Number 78, Alexander Hamilton declared that ‘the judiciary is beyond comparison the weakest of the three departments of power’ established by the Constitution. Given that John Marshall towered over the Supreme Court for three and a half decades and that Roger Taney was almost as dominant for nearly as long a time, that claim of Hamilton’s would appear to be wide of the mark. The fact is, however, that for the better part of a century the course of events substantially bore him out ... Indeed, by the 1970s many legal scholars – and even more professors of constitutional law – were saying just that. This school of thought was christened with the ungainly name noninterpretivism, as distinguished from the old-fashioned school of interpretivists or originalists, who believed that the justices must be guided by their interpretation of the language of the Constitution and the intent of its framers ... Increasing numbers of people grew uneasy with the Court’s direction, and by the time that Ronald Reagan was elected president in 1980, probably a majority of his supporters shared his conviction that something had to be done to rein in the Court ... President Reagan, for his part, paid far more attention to the judicial philosophies of his appointees than had almost any of his predecessors. His first choice for the next Supreme Court vacancy was Circuit Court Judge Robert Bork ... Dr. Lori Owens, after a brief introduction, begins her superb telling of the saga of Robert Bork with an account of the Meese-Brennan controversy. She has conducted an awesome amount of research, including interviews with more than a score of informed insiders and participants on both the pro-Bork and the anti-Bork sides ... The subject matter is as timeless as it is timely.” – (from the Foreword) Forrest McDonald, Professor Emeritus, University of Alabama

“The first Supreme Court vacancy in over a decade, and the long-running partisan battle over Federal judicial nominations in general, make Dr. Owens’ book extremely timely. Even though her analysis ends at the Clinton administration, she addresses issues and debates that are literally at the root of those we face today ... It is commonplace to say that the Bork nomination ‘changed everything,’ but Dr. Owens is one of the few scholars that probes beneath the service to identify exactly how and why it changed everything, addressing the exponential increase in interest group activity, media attention, ideological dialogue, intense examination of nominee records, etc. ... Scholars across the disciplinary, methodological, and ideological spectra will find this work of great interest.” – Professor Stephen A. Borrelli, University of Alabama

“The author takes a historian’s approach in this study. While many current scholarly works written on the subject of judicial politics and original intent deride the conceptual justifications of originalist arguments, Dr. Owens’ work paints a different landscape. She provides balanced attention to the opinions of scholars and political actors who see originalism and its variations as the touchstone of constitutional longevity and jurisprudential coherence ... This book will be appreciated by library audiences who want a recounting of the events and circumstances underlying today’s polarization of the federal judicial nomination process, especially in the higher courts. The work is energetic in describing the events of the post-Bork era. It sheds light on the way strategic dissembling has become a way of life for politicians and jurists seeking ideological ends in a high-stakes environment. This is especially the case in policy domains where a nationalized political agenda has trumped state prerogatives.” – Professor Timothy J. Barnett, Jackson State University

Table of Contents

Foreword by Forrest McDonald
1. The Original Intent Debate Emerges
2. Meese Versus Brennan
3. The Senate Confirmation Process Before 1987
4. The Bork Hearings
5. In the Wake of the Bork Hearings
6. The Confirmation Process Post-Bork
7. President Clinton’s Other Judicial Nominees
8. Original Intent at the Turn of the Century
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