Original subtitles

soft tense music

I left it all up for you,

so you can show that to her if you want.

Perfect, thank you.

Our referral sheet on the counter still?

- Yes, ma'am. - Thank you.

You're super early in the pregnancy,

but because we can see that heartbeat,

it is illegal to continue with the procedure here in Texas.

So your options are to go to a clinic outside of the state

- of Texas. - Oh...

Which would be your only option.

I honestly don't know how to feel.

I'm, like, shocked.

My whole life is gonna change now.

Choo...

I do this to help people... I am a person of service...

and she needed my help, and I made her day worse,

and that will live with me forever.

We deserve better!

You are all an abomination before God!

Abolish abortion!

God, I pray that you will forgive us

for the lives that are lost!

The Supreme Court today delivered one of its most

consequential decisions in generations,

ending the constitutional right to an abortion.

The Court overturned Roe v. Wade.

This is amazing!

This is probably the best day of American history in my lifetime!

Move aside!

Move to the side!

Ma'am! Ma'am, move to the side!

It's a blessing; it's a miracle from God!

It is so wonderful, and I think we have to worry about the

radical Left.

They're the ones that are gonna perform an insurrection here at

the Supreme Court.

This shit is not okay, all right?!

This is not okay!

The Republicans have been working

toward this day for decades.

Curious theme music

Part of the role of the Court is that it

is gonna protect people who may be vulnerable

in the political process.

I assure you, I have no agenda.

My only agenda is to be a good judge.

There's no difference between a white snake and a Black snake;

they'll both bite.

My approach, I believe, is neither liberal,

nor conservative.

My colleagues and I want to be the most trusted people

in America.

I think we all feel strongly in this

country about our privacy; I do.

I believe the Constitution protects the right to privacy.

Are you a gang rapist?

No.

Life's challenges place hurdles every day,

and one of the wonderful parts of the courage of America

is that we overcome them.

Do you affirm that the testimony you're about to give

before the committee will be the truth, the whole truth,

and nothing but the truth, so help you God?

I do.

Ominous music

energetic percussion

fanfare

jolly music

Now, this administration has been in

office for almost three months,

and I know that many are quite impatient, perhaps...

or might be impatient...

as to why we don't have peace,

why we haven't stopped inflation,

and why we haven't stopped the rise in crime

and reestablished respect for law

with justice and order throughout this country.

Ominous music

Ladies and gentlemen, I am very proud tonight to

nominate the 15h Chief Justice of the United States,

Judge Warren Burger.

President Nixon was perhaps the first president who had

a very active agenda to move the Court to the right.

Some of our judges have gone too far in assuming unto

themselves a mandate which is not theirs,

and that is to put their social or economic ideas

into their decisions.

President Nixon was the first president since Franklin

Roosevelt to campaign on the Supreme Court.

When Nixon ran, there was still a lot of opposition

to the decisions of the Warren Court,

whether it be Brown or school prayer...

The landmark decision was based on the First Amendment

to the Constitution.

Or Miranda, or "One Person, One Vote"...

We held that the legislatures must

give equal representation to everyone.

And much of this opposition was in the South.

I want the federal government

to get its grubby fingers

out

of the education business.

Judge Warren Burger was confirmed by the Senate

today as the next Chief Justice.

The vote was 74 to three.

Warren Burger, he was a not-illogical choice;

he had been sitting on the DC Circuit at the Federal Appeals

Court, and the DC circuit at that time was quite liberal.

Warren Burger was very much on the outs with his colleagues,

and he let them have it in dissenting opinions,

and he got pretty well known as being one of the more outspoken

Conservatives in Washington at that time.

Chief Justice Burger sort of campaigned for

the job of Chief Justice.

He would give speeches and wrote some opinion pieces in magazines

suggesting that the Warren Court had acted inappropriately,

especially when it comes to decisions involving

criminal procedure.

And it seems clear that he's gonna be his

law-and-order man on the bench.

But Nixon now has a second seat to play with,

and he makes it very clear that he wants a southerner.

So many cameras.

soft tense music

A judge of the United States Supreme Court occupying the

highest post that we have to give,

with no appeal possible from the decisions of that court,

ought to be free of every taint

of ethical misadventure, let's say.

For the second time, President Nixon today reached

into the South for a nominee to fill the place on the Supreme

Court vacated by former Justice Fortas.

G. Harrold Carswell is the worst possible

nominee!

The Nixon Administration has vetted him

so incompletely

that it doesn't know that, at one time,

as a candidate for the Georgia House of Representatives,

he had championed

white supremacy!

In that speech he said,

quote, "I am a southerner by ancestry,

birth, training, inclination, belief,

and practice.

I believe that segregation of the races is proper,

and the only and correct way of life in our states.

I yield to no man, as a fellow candidate or as a fellow

citizen, in the firm, vigorous belief in the principles of

white supremacy, and I shall always be so governed."

I have read a summary of what is attributed to me as a young

candidate some 22 years ago.

Specifically and categorically, I denounce and reject

the words themselves and the thoughts that they represent.

The final official vote:

51-45 against President Nixon's nomination of Florida Judge

G. Harold Carswell.

I don't think this is necessarily a victory for

anyone, unless it is a reestablishment of the right of

the Senate to say, "Mr. President, there are limits

beyond which we will not permit you to go in your nominating

process."

Nixon plays up the defeat of these nominees as an act of what

he calls "regional discrimination."

Judge Carswell,

and before him, Judge Haynsworth,

had been submitted to vicious assaults on their intelligence,

on their honesty, and on their character.

They've been falsely charged with being racists.

And he kind of resigns himself to nominating

someone who's not a southerner, who he thinks can get a fair

hearing.

And so he goes with Harry Blackmun.

In addition to a recommendation from his lifelong friend

Chief Justice Warren Burger was he had never offended anybody;

he really had never taken a stand on anything very much.

And so he was gonna get confirmed.

Curious music

This was not such a newly-constituted Court that it

was going to radically change things,

so you end up with a number of decisions that people of a very

conservative bent were displeased with.

Chief Justice Burger wrote an opinion in Swann versus

Charlotte-Mecklenburg County approving bussing.

That was met with significant backlash.

So there wasn't a sudden break just because Warren Burger

became the Chief Justice.

Nixon, he then gets two more vacancies

when Harlan and Black leave the Court.

President Nixon sends his two nominations to the US Supreme

Court to the Senate for confirmation today.

Neither Powell nor Rehnquist had ever been a judge.

Powell had been a very successful big business lawyer

in Richmond, Virginia, had been head of the Virginia

School Board, was very civic-minded.

Rehnquist was much younger, much more outspoken.

Do I look magisterial, huh?

I predict in another couple of minutes,

I will melt, so...

In Nixon's mind, Powell and Rehnquist will do

a couple things.

Publicly, he says these are his law-and-order candidates.

Privately, though, there's also, I think,

the matter of their stance on civil rights.

He knew Rehnquist as a former assistant attorney general who

had drafted a constitutional amendment that would have banned

bussing.

He saw Lewis Powell as the former head of a school board in

Virginia, who had dragged his feet on the integration of

schools there.

Melancholy ambient music

I am reminded of what one of the young partners in my law

"Mr. Powell, this is a honeymoon.

After you've written a few dozen opinions,

your picture will be on the dartboard of every bar

in Virginia!"

One thing that came to light in Rehnquist's

confirmation hearing was that, as a law clerk to Justice Robert

Jackson, a memo came to light that he had written to the

Justice, arguing that Plessy against Ferguson...

"separate but equal"...

should be reaffirmed, should not be overturned.

But you see, it was for Justice Jackson's use

in discussing

the cases

then before the Supreme Court.

It was to be used by him in conference

with other judges.

So these views were not Mr. Rehnquist's own?

They were not Mr. Rehnquist's own.

Okay, so call back if there are any problems,

and I'm sure our counselors can help you.

Tense drone

Take a big step back!

Onto the sidewalk!

Everybody move!

So in 1965, Griswold versus Connecticut came

to the Supreme Court.

The Court had earlier received a challenge to Connecticut's

contraception ban, and I don't think they were ready.

And so they dismissed it.

Estelle Griswold, who is the executive director of Planned

Parenthood of Connecticut, decides she's going to find a

way for this case to get to the Court,

and so what she does is she opens a birth control clinic,

and she begins passing out fliers like,

"Guess what! You can get a diaphragm here!

You can get birth control pills here!

It's a birth control clinic!"

And the police come.

On November 10th, after 10 days of operation,

the clinic was raided and closed by police.

And they arrest her,

and they arrest the medical director Lee Buxton,

and suddenly, we're in business, and we have a viable case or

controversy, and it gets all the way to the Supreme Court.

Well, I think it's very evident that the law is unenforceable.

I think if you had a policeman under every bed in the state of

Connecticut, they still could not prove anything.

In an opinion written by Justice William O. Douglas,

the Court says that Connecticut's ban on

contraception violates a fundamental principle of privacy

that can be divined from the penumbras of various

other constitutional guarantees, including the First Amendment,

the Third Amendment, the Ninth Amendment,

the Fifth Amendment.

None of these protections for the individual would make sense

absent some right to privacy in your intimate life,

in your person.

Tender music

It is novel... no one has heard of it before... and you can see

that there is some disagreement on the Court.

Justice Goldberg writes,

"We could just do this with the Ninth Amendment!"

Justice Harlan says,

"The 14th Amendment's guarantee of liberty

allows us to strike down this law.

We don't have to make up privacy."

And in dissent, Justice Hugo Black is like,

"You're just making this up.

This is basically your own policy preference that you're

bringing in here."

Douglas is really careful that this right to privacy is one

that is tethered to the marital relationship,

so he talks about the sacred precinct of the marital bedroom

you know, "Would we allow the police to enter the sacred

precincts of the marital bedroom,

searching for tell-tale signs of contraception?"

The answer, of course, is no!

A few years later, the next iteration of this question comes

up when the Court must take on a Massachusetts ban that prohibits

the use of contraception by unmarried people.

In an opinion drafted by William Brennan,

the Court says, "If the right to privacy means anything,

it must be the right of the individual,

whether single or married, to make so fundamental a decision

affecting the person as whether to bear or beget a child."

The Court surely knows, when it decides Eisenstadt,

that

abortion is coming down the pike.

Soft tense music

Law and judges.

Here are these women literally five years out

of law school... maybe less...

arguing before the Supreme Court.

It's an old joke, but when a man argues against two

beautiful ladies like this,

they're going to have the last word.

So that happens.

But they make their claim before the Court that this right to

privacy that was first identified in Griswold is

capacious enough to include the right of a woman to terminate

her pregnancy.

I do feel that it is...

that the Ninth Amendment is an appropriate place for the

freedom to rest.

I think the 14th Amendment is equally an appropriate place.

Harry Blackmun, who had been assigned the majority,

was planning to write an opinion essentially saying Texas' law

was unconstitutional because it was vague,

and so it was unfair to penalize doctors who wouldn't know ahead

of time when they could or couldn't perform an abortion.

And he circulated some drafts and memos to that effect,

and the other justices the liberal justices,

in particular... responded that this wasn't enough;

they wanted him to go further.

And Blackmun said, "Let's reargue the case next term.

That way, Powell and Rehnquist can participate."

And that summer, Blackmun, who had been general counsel to the

Mayo Clinic, learned abortion had been legal at the time that

the Constitution was adopted.

And he sort of suggests that women in the colonial era...

women in the 1700s... actually had more rights than women do in

1973 to terminate a pregnancy.

And then he later moves into whether or not the right of

privacy allows for this, and he says it does.

The Court split seven to two,

with justices Byron White and William Rehnquist dissenting.

This was not a partisan decision.

Three of the four Nixon appointees voted for the

decision, and five of the justices in the majority had

been appointed by Republican presidents.

Good evening.

In a landmark ruling, the Supreme Court today legalized

abortions.

The majority, in cases from Texas and Georgia,

said that the decision to end a pregnancy during the first three

months belongs to the woman and her doctor,

not the government.

During the second three months of pregnancy at rule,

the state may regulate abortion procedures,

but only to ensure the safety of the mother.

And in the last three months, whatever state laws say

prevails.

Soft tense music

So as the Watergate inquiry expands,

it becomes known that Nixon had actually recorded conversations

inside the Oval Office.

Nixon resists efforts to have these tapes heard.

He claims that he has what he says is "executive privilege,"

and so becomes an issue that finds its way,

as all big issues do, to the Supreme Court.

Well, it says, "Equal justice under law,"

so we oughta win, Phil.

The case is styled "The United States of America

versus Richard M. Nixon," and it gives a sense of the...

of the stakes here.

Four members of the Court had been appointed by Nixon;

they owed their status on the Court to the man.

One decision, unanimous,

delivered by the Chief Justice Warren Burger.

The Court said the President's claim of absolute privilege

would upset the constitutional balance of a workable

government.

And from that moment on, the writing's on the wall,

and it's clear Nixon is gonna be forced from office one way or

another.

I shall resign the Presidency effective at noon tomorrow.

Congratulations, Mr. President.

Justice John Paul Stevens was named by President

Ford to replace William O. Douglas,

one of the most liberal all-time justices.

John Paul Stevens, he was the first justice named to the Court

after the Court had decided Roe against Wade.

Someone got ahold of the transcript of the hearing to see

what he was asked about abortion.

It wasn't there; he was not asked a single question about

abortion.

This really was the quiet years;

you know, abortion was not a proxy for

all things and everything

and the only litmus test for justices for a very long time.

The Republican Party and Democratic Party both had people

who were opposed to and in favor of access to abortion,

so if you're thinking about the party politics of abortion,

they would be completely unrecognizable to someone

thinking from 2022 or even 2010.

Jimmy Carter coloring books!

Jimmy Carter coloring books!

Just to take the 1976 election, Jimmy Carter spent most of his

time talking about how abortion was unfortunate but didn't

support a constitutional amendment outlawing abortion.

We can have an America

that encourages and takes pride

in our ethnic diversity, our religious diversity,

our cultural diversity.

He's put together something like FDR had once

before; he's got the Blacks, he's got the South,

he's got Labor.

Uh...

Is he going to keep it together

into November?

This is the moment in which Newsweek declares 1976

"The Year of the Evangelical."

The reborn Christians in this country,

who are growing in number and influence...

They are suddenly everywhere.

Hallelujah

And this Evangelical support rallies around Carter,

because Carter is legitimately one of them.

Governor Carter, are you prepared to take the

constitutional oath?

I am.

Will you place your left hand on the Bible and

raise your right hand?

Carter believes that whatever his own religious faith is,

he shouldn't enforce it on the country,

and that means that, in a lot of ways,

he is actively supporting Democratic positions that call

for the liberalization of American life in a variety of

ways that embrace feminism, gay rights,

and this is seen by Conservative Christians as an apostasy...

they've made a huge mistake by embracing Carter because he has

been a false prophet.

I will pour water

On him who is thirsty

What happened in the 1970s that's so interesting was that

the Catholics, whose issue was abortion,

and the Evangelicals, whose issue was the pending

Equal Rights Amendment and the so-called "Family Values

Movement," they got together.

Soft tense music

If the Equal Rights Amendment is ratified,

people will then realize it's quite a fraud.

These are two groups... the Catholics and the Evangelicals

who had a long history of

suspicion, one to the other.

They were not natural allies.

Organizers of the New Right are looking for a way

to rebuild the Republican Party in the wake of Watergate,

and that meant bringing together a disparate group of people.

We've got to raise up an army of men and women in America

who'll call this nation back to moral sanity and sensibility.

I call that "The Moral Majority."

White Evangelical Protestants who were not sure what to think

about abortion were very sure what to think about the emerging

Gay Rights Movement, and they were very sure what to think

about the Equal Rights Movement and the Women's Movement,

which was that all of those things were terrible and they

were threats to the family.

So New Right organizers and some of the kind of religious leaders

drew a direct connection between all of these things.

The fact is that God created Adam and Eve,

and it was Adam and Eve, not Adam and Steve.

And some people like Jerry Falwell,

who hadn't given a sermon about Roe in the first few years after

it came out, suddenly make it a central issue.

Because I never really believed that a Supreme Court of this

country would legalize abortion on demand.

This was an effective campaign to say,

"Now we're gonna politicize Roe."

Jane, there are perhaps 50 million born-again Evangelicals,

long relatively inactive in politics,

but now beginning to develop what could become enormous

political clout.

Very quickly, what changed?

I would say that the Madalyn O'Hair anti-prayer thing in '63,

the abortion ruling in '73,

the murder of eight million babies since that time,

I would say the IRS attempt to interfere with Christian schools

the last five years,

and many other governmental interventions in the Christian

Movement have told us if we don't stand up and fight,

we're not gonna survive.

Dr. Falwell, many thanks.

Soft tense music

I feel like that if we don't get somebody like Mr. Reagan in

the White House soon, we're in trouble in America.

We're in trouble.

August 3rd, 1980,

when Ronald Reagan opened his General Election campaign

for the presidency in, of all places,

Philadelphia, Mississippi,

at the Neshoba County Fair,

the very place where, 16 summers earlier,

the Ku Klux Klan, in collusion with the local sheriff's office,

abducted, tortured, and murdered

three civil rights workers.

Fanfare

Thank you!

Nancy and I have never seen anything like this,

because there isn't anything like this!

And Reagan, of course,

was the master of symbolism.

He declared this old segregationist battle cry:

"I believe in states' rights."

soft tense music

When Jimmy Carter's running for reelection

in 1980, he's facing strong headwinds;

interest rates are through the roof,

inflation is high...

You had the taking of the hostages in Iran...

Carter was in a compromised position going into that

election.

What would Jimmy Carter have to do to get all the

born-again Christians back on his side?

Well, I... I think the Lord would have to come down and,

uh...

tap him on the shoulder visibly with us looking.

By the 1980 Presidential Election,

Reagan claimed to have a kind of conversion to a pro-life

position, but it was never really central to

his campaign in 1980 until very, very late in the campaign,

where he is afraid that they're going to lose

the Evangelical vote.

Now, I know this is a nonpartisan gathering,

and so I know that you can't endorse me,

but I only brought that up because I want you to know that

I endorse you and what you are doing.

Evangelicals going to the voting booth in 1980

by and large turned against one of their own...

a born-again Southern Baptist Sunday school teacher...

in favor of...

a former Hollywood actor, divorced,

remarried, and yet,

Ronald Reagan becomes the political messiah

for Evangelicals in 1980.

Fanfare

President Reagan, when he was campaigning,

he didn't think he was doing too well with the female votes,

and he started making statements.

I am announcing today that one of the first Supreme Court

vacancies in my administration

will be filled by the most qualified woman I can possibly

find.

And there he was faced with what to do.

The Supreme Court held its first session in 1790,

and since, 101 men have served on it.

It took 45 years for the first Catholic to be appointed,

126 years for the first Jew,

177 years for the first... and only... Black,

and if Judge O'Connor is confirmed,

it will have taken 191 years for the Court to get its first

woman.

Is there any member of the press that doesn't

have a seat?

Someone raised some point about the press.

I'd like to know if there's anyone that doesn't have a seat.

As the first woman to be nominated as a Supreme Court

Justice, I'm particularly honored,

and I happily share the honor with millions of American women

of yesterday and of today.

I wonder if you could share with us,

for just a few minutes,

your personal philosophy or feeling as to abortion

so the record would be clear.

Okay, Senator, uh, again, let me preface the comment by saying

that my personal views and beliefs...

in this area and in other areas...

have no place in the resolution of any legal issues

that will come before the Court.

I think these are matters that, out of necessity,

a judge must attempt to set aside in resolving the cases to

come before the Court.

Sandra Day O'Connor's nomination to the Supreme Court

swept through the US Senate today without a dissenting vote.

It was approved 99 to nothing.

I'm absolutely overjoyed with the expression of support from

the Senate.

So I look forward to the end of all of these formal proceedings

and the chance to go to work over across the street.

Well done.

Edwin Meese spent his first year as Attorney General

as a super-salesman for the Reagan Revolution.

Good morning.

Meese has brought his own people into the Justice

Department that is given good grades by almost everyone for

keeping up the pressure to catch drug traffickers

and spies.

What gets Meese in trouble is his tendency to see court

decisions protecting civil liberties as an obstacle

to law enforcement.

Do you understand your rights, sir?

The overall objective of the Reagan Revolution was

to get the Court to do what

could not be achieved in normal electoral politics because the

country was not on board

for what these people wanted to do,

which was basically

to turn back the clock on the

social and cultural revolutions that had been going on

through the last couple of decades.

There were sort of three focuses on

what the new administration was trying to do.

One of them was

"Can't we do something about these decisions

that the Warren Court pursued?"

But ultimately, that effort to go and get cases reversed in the

Supreme Court was basically not successful.

Soft tense music

The second piece was "Well, we can at least put judges...

the President can put judges on the courts who will not be doing

these sorts of things.

We don't want activist judges."

What Ed Meese has done is assemble a team of young legal

Conservatives who are extraordinarily able...

some of them he's named to the bench,

others he has on the staff of the Justice Department...

and they have reset the agenda for debate concerning federal

judicial policy.

The third thing is an effort, really,

to develop a new approach, and a new philosophy

of judging and legal reasoning.

Originalism is a constitutional theory that advocates

interpreting the Constitution according to its original public

meaning,

so that the meaning of the words were fixed at the time

that provision of the Constitution was ratified,

and that in order to uncover the meaning of that provision,

you would try to ask, "What would the average person who

participated in the ratification process think this provision

means?"

And so you can contrast that with something like

living constitutionalism or its current iterations on the left,

which would see the Constitution as an evolving document.

Our organization is set up with a purpose of making sure that

the Constitution of the United States is a living document!

So when we look at the Eighth Amendment and we look at its

prohibition on cruel and unusual punishment,

we don't ask, "What did people in 1791 think was cruel

and unusual?"

Because it wasn't a lot.

We ask, "What do people today

believe is cruel and unusual punishment?"

Supreme Court Justice William Brennan,

in a speech today, appeared to answer Reagan Administration

criticism of recent Supreme Court decisions.

Brennan told an audience at Georgetown University,

"The idea that the Constitution should be viewed as it was

written 200 years ago is arrogant."

Said Brennan, "Justices read the Constitution in the only way

As 20th-century Americans."

Initially, that original intent idea was aimed squarely at

things that the Warren Court in particular...

and, to some degree, the Burger Court... had done.

Where's the Miranda Rule in the Constitution?

Well, it isn't there, obviously... not literally.

Where in the Constitution is there any indication of a right

to abortion?

Where does it say anything about that?

The promotion of these views was extremely successful.

One of the ways they were promoted was with the assistance

of the Federalist Society.

I was not there the weekend the Federalist Society was created,

but I was in law school at the time.

It was founded by law students who felt that they were not in

an environment that was open to or friendly to

Conservative thought.

Its founders are law students at the University

of Chicago and Yale Law School.

Within five years, there are law school chapters all over the

United States, and the founders were very,

very clear at the outset that it wasn't just about

a debating society,

it was about credentialing and building an alternative

Conservative elite.

And that was the real path to power.

Dan Rather reporting.

Today's top story is:

Warren Burger is out as Chief Justice of the United States.

Conservatives had felt that Warren Burger had let

them down; he'd been a missed opportunity.

He presided over some change, but not enough to their mind.

And so, when Reagan goes to replace Burger,

Rehnquist is the natural choice.

They firmly believe that Rehnquist will finally lead this

Conservative counter-revolution on the Court,

and Antonin Scalia is seen as someone who will aid Rehnquist

in this fight.

For somebody who spend his whole

professional life in the law,

getting nominated to the Supreme Court is the culmination of...

of a dream.

Mr. President, what was the process which led you to

Judge Scalia?

Did you know him before?

Did people come to you and recommend him?

What was the process?

I had previously appointed him.

But surely, you must think, sir,

that he agrees with you on such issues as abortion,

affirmative action, prayer in the schools?

That's the question.

50 years old, Scalia would be the Court's first

Italian-American.

Born in Trenton, New Jersey, has a law degree from Harvard.

He was an academic, he taught at my alma mater,

the University of Virginia Law School,

and then at the University of Chicago,

so I think he was keenly aware of the power of influence that

a dissenter on the Supreme Court could have,

'cause you're gonna get an automatic audience.

He'd be like, "I'm not writing for the public,

I'm not writing for the courts,

I'm writing for the law students.

I'm writing because this generation is going to come

along, and they're gonna do the thing that we're too gutless

to do."

You've written on the subject of Roe versus Wade,

I believe you have expressed doubts about that decision,

both on moral grounds as well as on juris prudence.

I think I may have criticized the decision,

but I don't recall passing moral judgment on the...

on the issue.

Today, two senate Democrats revealed they have asked the FBI

to check on whether Rehnquist gave Black and Hispanic voters a

hard time when he was an Arizona official.

His words were,

"You do not know how to read, do you?

You don't belong in this line, and you should leave."

As I understand,

your testimony said you watched... you were a poll

watcher, but a "challenger" has a different connotation

or activity.

Well, but to be a poll watcher at that time in Arizona,

I think you had to be a challenger.

Well, have you ever personally challenged

any individual in any...

I don't believe so.

Well, you'd know it, wouldn't you,

- if you did? - Uh...

In nominating Rehnquist for the Chief Justice and nominating

Antonin Scalia for the Associate Justice position that Rehnquist

would vacate, Reagan pulled off what baseball fans would

recognize as a "double switch."

William Rehnquist told reporters he was gratified by

the Senate's 65-to-33 confirmation vote last night.

It's an effective move because it meant that Rehnquist

got all the attention.

So Antonin Scalia, who turns out to be one of the Court's most

conservative members, sails through with a unanimous vote.

Soft curious music

Justice Scalia, he's one of the early faculty

advisors to the Federalist Society.

The topic of...

And so, when he's appointed to the Supreme Court,

Scalia brings some of the founders of the Federalist

Society in as clerks,

and sort of gives this fledgling organization a credential.

Justice Scalia, I think it's fair to

say, was the leading spokesman in the nation for originalism.

I was in the summer between my first and second year of law

school when Justice Powell announced he was retiring from

the Court and President Reagan nominated Judge Robert Bork,

who was a judge on the Federal Court of Appeals.

No!

Just say no!

We will go all out in seeing to it that Judge Bork is not

confirmed.

Everyone understood the stakes.

Lewis Powell had retired, he was the swing vote,

it was clear that the appointment of Judge Bork could

shift the Court.

I was very close to Judge Bork.

I admired his intellect, his writing,

his incredible sense of humor.

He had been a brilliant student, he'd been Solicitor General of

the United States, he had been a judge on the United States Court

of Appeals for the DC Circuit, but it was contentious because

of concern by some individual senators...

"Well, what kind of a justice is he going to be,

and how is he going to rule?"

Now, let's talk about the Griswold case.

He had criticized, as an academic,

all of the landmark cases of the Warren Court and Burger Court.

It is easy to conclude from the public record

of Mr. Bork's published views

that he believes women and Blacks are second-class citizens

under the Constitution.

In Robert Bork's America, there is no room at the inn for

Blacks,

and no place in the Constitution for women,

and in our America, there should be no seat on the Supreme Court

for Robert Bork.

Does the majority have the right to tell a couple

that they can't use birth control?

I have never decided that case.

If it ever comes before me, I will have to decide it.

All I have done was point out that the right of privacy,

as defined... or undefined... by Justice Douglas,

was a free-floating right that was not derived in a principled

fashion from constitutional materials.

That's all I've done.

Bork was very forthcoming about his views.

He was very dismissive of the right to abortion,

made it quite clear that he would overturn Roe if he had

a chance.

I don't want to see the argument made

that there is no right to privacy,

and the only way to prevent it being made

is to deny

Judge Bork

membership on the Court.

Are you calling about the Bork nomination?

Are you for it or against it?

Soft tense music

Senator from Kentucky.

I thank the Chair.

It's my prediction, Madame President,

this President's gonna send up another nominee...

philosophical soulmate of Judge Bork,

if probably not so well-published,

somebody maybe 10 or 15 years younger...

and we may waltz around this maypole one more time.

Like many Conservatives,

he saw the Bork nomination

as the first instance

in which Liberals "Borked" a nominee,

and that turnabout was fair play.

We may not be able to pick the nominee,

but we can sure shoot 'em down.

We can sure shoot 'em down.

The yeas are 42, the nays are 58.

The nomination is not confirmed.

We... the big "we" of the civil and human rights community...

were successful in blocking his nomination,

resulting eventually in the appointment of Justice Kennedy.

Judge... and now, Justice... Kennedy.

Sounds good, doesn't it?

The Constitution of the United States is the single fact,

the single reality, the single idea,

the single moral principle

that sets the United States apart

from other nations, now and throughout history.

Justice Kennedy... who, while conservative,

and probably more conservative than Justice Powell...

turned out to be much more of a Centrist and a Moderate

certainly than Judge Bork would have been.

I think the nature of the hearing process has been

profoundly impacted in a mostly-negative way

by the Bork hearing.

He told people that he was excited to be on the Court

'cause it would be an intellectual feast,

and people made fun of him for saying that.

Then, he talked about what the thought about things,

and he's very conservative, and what he thought wasn't

necessarily what everybody wanted to hear,

and so that led to

a pulling back on what anybody's willing to say about anything.

Will preserve, protect, and defend the Constitution of the

United States.

So help me God.

So help me God.

Congratulations.

Thank you.

Band playing "Hail to the Chief"

Good evening, everyone.

A resignation on Friday, the weekend to think about it,

tonight a name.

Justice Brennan had a stroke in July and

retired immediately.

The first President Bush was really on-the-spot;

he needed to get a name up there so that somebody could be

sitting when the term began.

No litmus test or standard dominating my decision

to nominate.

Souter still lives alone,

in the farmhouse he was raised.

It is not known where David Souter stands on key

issues like abortion.

You know, he wasn't vetted for that.

I mean, he had been a Rhodes Scholar,

Harvard Law School.

Soft tense music

David Souter had never offended anybody,

had never taken a position on anything major,

and he'd just been put on the First Circuit at the Federal

Appeals Court in Boston, where he had served for

just about two months, but he had been fully vetted and

confirmed by the Senate for that,

so it was the easiest among possible choices and,

you know, that's another example of how

every vacancy has its own

set of necessities.

Thurgood Marshall announced his retirement from

the Supreme Court today.

When you first came to the Court,

you were part of a Liberal majority.

In the last years you've served on this Court,

you've written more and more dissents.

You know, we pick our law clerks each year,

and one of the questions I asked

prospective law clerks was:

"How do you like writing dissenting opinions?"

And if they said no, they didn't get a job.

Do you think President Bush has any kind of an

obligation

to name a minority candidate for your job?

I don't think that that should be a ploy,

and I don't think it should be

used as an excuse, one way or the other.

An excuse for what, Justice?

Doing wrong.

I mean for picking the wrong Negro and saying,

"I'm picking him because he's a Negro."

I'm opposed to that.

Well, I am very pleased to announce that I will nominate

Judge Clarence Thomas

to serve as Associate Justice of the United States Supreme Court.

George H.W. Bush had put Clarence Thomas on the DC

Circuit at the Federal Appeals Court in DC,

I think in the knowledge that, when Thurgood Marshall retired,

it would be incumbent on any Republican president to

name a Black justice,

and it should be a Conservative Black justice.

We're talking 1990, and that would have been a category of

one.

As a child, I could not dare dream that I would ever see the

Supreme Court, not to mention be nominated to it.

Indeed, my most vivid childhood memory of the Supreme Court

was the "Impeach Earl Warren" signs,

which lined Highway 17 near Savannah.

Unlike Robert Bork, who had tremendous experience,

Clarence Thomas had comparatively little.

And so, rather than leaning on his obvious qualifications as

they had tried with Bork, they instead lean on his personal

story.

I thank all of those who have helped me along the way,

and who have helped me to this point and this moment in my

life, especially my grandparents,

who are...

especially my grandparents...

my mother,

and the nuns.

Only thing I wanna do is just give you a copy of the

Constitution, and follow that and that's all I would ask you

- to do. - Thank you, Senator.

This is my old copy.

Affirmative action's a sacred cow,

school bussing's a sacred cow,

minimum wage is apparently becoming a sacred cow.

Okay?

What I am saying is that none should be sacred cows.

I never thought I'd be sitting here talking about the youth of

a nominee to the Supreme Court.

I'm 48; how old are you, Judge? 42, 3?

Well, I've aged over the last 10 weeks,

but, uh...

I'm 43.

I'd like first to introduce my wife Virginia.

Welcome, Mrs. Thomas.

Unlike Bork, where the hearings were all about the ramifications

of his ideology, Thomas presented himself as almost

a blank slate.

I'm not asking you to pre-judge the case,

I'm just asking you whether you believe that the Constitution

protects a woman's right to chose to terminate her

pregnancy.

Senator, as I noted yesterday,

and I think we all feel strongly in this country about our

privacy... I do...

I believe the Constitution protects the right to privacy.

Roe v. Wade had been handed down while Thomas was in law school,

and yet he said he had never debated it

at the time it came down.

You're not suggesting that there wasn't any discussion

at any time of Roe versus Wade?

I cannot... I...

Senator, I cannot remember personally engaging in those

discussions.

And so it gave the opposition no way to latch on,

and instead, all that they were left with was Clarence Thomas

the man.

Soft tense music

White House officials began the week confident that

President Bush had 60 Senate votes in his pocket for the

nomination of Clarence Thomas to the Supreme Court.

And then, right before the vote,

the Anita Hill allegations surface.

The pressure was such

that

I was going to have to submit to that pressure

in order to

continue

getting good assignments.

Republican Senator John Danforth says the

accusations are sleazy, unfounded,

and untrue.

In politics, this is known as "the October Surprise."

The irony here is that the Bush Administration had tried to

press his personal story as the way for him to get through,

and his personal life becomes fodder for the hearings.

X-rated and extraordinary.

That's the way it's been all day long,

with millions glued to their television sets as senators

scrutinize the sexual harassment charges against Supreme Court

nominee Clarence Thomas... the most sensational hearings since

Watergate.

He referred to the size of his own penis

as being larger than normal, and he also spoke on some occasions

of the pleasures he had given

to women

with oral sex.

I was there.

It was volcanic.

We didn't know, when Judge Thomas came into the hearing

room, what his MO was going to be.

He could have said, "I'm so sorry if I did anything that

offended Anita Hill.

I certainly didn't mean to cause offense."

As a Black American, as far as I'm concerned,

it is a high-tech lynching for uppity Blacks,

who in any way deign to think for themselves.

The all-male, all-white Judiciary Committee was like,

"Whoa, we do not wanna be tangling on this."

And it is a message that unless you kowtow to an old order,

this is what will happen to you.

You will be lynched, destroyed, caricatured

by a committee of the US Senate, rather than hung from a tree.

The yeas are 52, and the nays are 48.

The nomination of Clarence Thomas of Georgia to be

Associate Justice of the United States Supreme Court is hereby

confirmed.

- So help you God. - So help me God.

Great pleasure. Congratulations.

You have no right to be there!

Ready to get to work.

- What about the baby?! - What about the women?!

- What about the baby?! - What about the women?!

- What about the baby?! - What about the women?!

Planned Parenthood versus Casey looks like the case that's

really going to decimate Roe,

in large part because the Court has changed.

So it looks like, you know, lights-out for Roe.

But, interestingly,

Justice Kennedy, who's a Reagan appointee, Justice O'Connor,

and Justice Souter come together

to form a kind of plurality to compromise.

Soft tense music

Kennedy then contacted Blackmun and said,

"I think we should have a conversation.

I have some news that I think will make you feel good."

And he said that he and O'Connor and Souter had been talking

about Roe and Casey, and they had decided that Roe should not

be overruled, that it should be modified in some ways,

but that the core of the decision should remain in place.

Justice Kennedy came in and talked to me about it,

told me what was happening and that he was one of the three,

which, as far as I was concerned, was

a matter of great gratification.

O'Connor was supposed to be anti-choice,

Kennedy was supposed to be anti-choice,

Souter was supposed to be, and all of them defect.

Today,

three Reagan/Bush appointees

stabbed the pro-life movement in the back,

and affirmed the bloodshed!

That is not just a marker for when Roe becomes the most

important, the only question, but this longstanding sense of

grievance on the political Right and the Conservative legal

movement, that even when we win the Court and we put all the

pieces on the board, and these are hard-fought seats,

and we vet these people, and then they turn around

and betray us.

We reaffirm the constitutionally-protected

liberty of the woman to decide to have an abortion before the

fetus attains viability.

So to overrule in the absence of the most compelling

reason to reexamine a watershed decision would subvert the

Court's legitimacy beyond any serious question.

At the heart of liberty is the right to define

one's own concept of existence, of meaning,

of the universe,

and of the mystery of human life.

Dark tense music