When President Reagan nominated Bork to the Supreme Court, no one questioned his qualifications. Just five years earlier, he had been unanimously confirmed for the D.C. Circuit Court of Appeals, having earned an “exceptionally well qualified” label from the American Bar Association. But in the interim, the Democratic Party had taken control of the Senate. Senator Ted Kennedy orchestrated a smear campaign against Bork so breathtaking in its distortion that even the liberal Washington Post denounced it as a “lynching.”
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Even that setback ultimately served to advance Judge Bork’s constitutional agenda. It galvanized conservatives. In the four years after the confirmation battle, the leading conservative legal organization, the Federalist Society, watched its contributions soar, partly as a result of the “Bork effect.” Today, originalism has moved from the fringes to the mainstream. Many liberal legal scholars concede that judges ought to be guided by the original understanding of the Constitution.

No Supreme Court nominee today dares disavow originalism or declare his or her sympathy with a “living Constitution” philosophy. When Elena Kagan faced Senate confirmation for the Supreme Court in 2010, she went out of her way to praise originalism as an interpretive method. As the future justice explained: “Sometimes [the framers] laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they say, what they meant to do. So in that sense, we are all originalists.”