Reagan had promised to nominate the first woman to be a Supreme Court justice and, with O’Connor, he delivered on that promise. She was friends with Chief Justice Burger (who lobbied hard for her nomination), and she had been law school classmates with William Rehnquist. Indeed, he had been first in the class, and she had been third in the class. I’ve often wondered: Whatever happened to the poor fellow who was ranked number two? Coincidentally, Rehnquist and O’Connor dated briefly while in law school, and he even proposed marriage (which she declined). By the time each was subsequently married, they and their spouses became close friends, all four socializing regularly for the rest of their lives.
That brief romantic history between them led to my most awkward moment clerking. It was 1996, and the Court was considering the first Internet porn case. At the time, the justices didn’t really know what the Internet was, so the Court librarians arranged to show them. They grouped the justices two at a time, and so Rehnquist and O’Connor (both septuagenarians), and their seven young clerks were all squeezed into a small, dark room together while the librarians showed the justices just how easy it was to find explicit pornography online. All of us clerks were exceedingly uncomfortable, but given that they had dated five decades earlier, I couldn’t help but wonder what both of them must have been thinking that day. Regardless, I still remember what Justice O’Connor said when the first graphic image appeared on the screen: “Oh my.…”
But in 1981, when Reagan appointed her, nothing in O’Connor’s record demonstrated a particularly conservative sensibility—a record of standing for the Constitution in the face of withering criticism. O’Connor would go on to become the quintessential swing justice, exquisitely subject to the “Greenhouse effect” and always trying to impose whatever outcome she personally thought was fair or right. Never mind what the law said.
After O’Connor, Reagan nominated Antonin Scalia. That nomination occurred when Chief Justice Burger retired from the bench. Reagan had two nominations to make at the same time. He elevated William Rehnquist from associate justice to chief justice, and he named Scalia to replace Rehnquist as an associate justice. My former boss and dear friend, Chuck Cooper (a former Rehnquist clerk), was a senior official in the Reagan Department of Justice at the time and a major proponent of both nominations; he has likened that day to a “double steal” in baseball. It was perhaps the single greatest advance for constitutionalist judging in the history of the Supreme Court.
A story I was told long ago, when I was clerking for Judge Luttig, captures a bit of Scalia’s brilliance, charm, and wit. Luttig was Scalia’s very first law clerk on the U.S. Court of Appeals for the D.C. Circuit. At the time, there were two conservative luminaries serving on the D.C. Circuit, Robert Bork and Antonin Scalia. Each had been a legendary academic. Each had staggering intellect and demonstrated courage of conviction. Everybody knew one of the two was likely to be Reagan’s next Supreme Court nominee. At the time, Reagan confidant Edwin Meese was serving as attorney general, and he had come to the D.C. Circuit courthouse to speak at an event.
U.S. marshals were holding an elevator in the parking garage when Scalia walked up with Judge Luttig, his law clerk in tow. The marshals stopped Judge Scalia, telling him, “I’m sorry sir, we’re holding this elevator for the attorney general of the United States.” Scalia pushed past them both, stepped into the elevator, jammed the button, and, as the door was closing, he said, “you tell Ed Meese… that Bob Bork doesn’t wait for anyone!”
And so it was. The very next nomination on the high court was Scalia’s, who was confirmed in the Senate by a margin of 98–0. It reflected a different time in judicial nominations: Rehnquist took most of the incoming fire, and Scalia—the first Italian-American justice in history—sat at the witness table during his confirmation hearing before the Senate Judiciary Committee, calmly smoking a pipe.
By the next year, 1987, Democrats had retaken the Senate, and Reagan got his third Supreme Court vacancy. He promptly nominated Robert Bork. Bork had the bad fortune of being nominated when Republicans no longer controlled a majority in the Senate. The confirmation hearing was a bloodbath, with Ted Kennedy leading the charge, savaging Bork and painting a frightening picture of what he described as “Robert Bork’s America.” Bork, at the time, had a scruffy goatee and mustache. I have often joked that if someone had just purchased Bork a razor, he would have been confirmed to the Court, because his scraggly beard made him look a bit frightening—even Mephistophelean—and the Democratic senators’ antics only played up that impression.
Bork’s nomination was defeated, and he earned a place in judicial immortality by having his name transformed into a verb. Even today, “borking” a nominee, as painfully experienced by Clarence Thomas and Brett Kavanaugh, is used to describe unfair, nasty, personal, partisan attacks and relentless mudslinging designed to destroy a judicial nominee. After Bork, Reagan tried again. Once more he went with a conservative judge from the D.C. Circuit, Doug Ginsburg. Although not the luminary that Scalia and Bork had been, based on his subsequent judicial service, Ginsburg would likely have proven a principled justice.
But the left had been aroused. Blood was in the water from the Bork saga, and the mob was not yet sated. This time they went after Ginsburg’s personal habits and, in particular, the poor judgment he had to smoke marijuana, both as a
