Supreme Revenge: Battle for the Court

>> I, Amy Coney Barrett, do solemnly swear... >> Democrats call it a rush job.

>> NARRATOR: A supreme court takeover 30 years in the making.

>> It is a system that has become toxic.

>> NARRATOR: And behind the scenes, one powerful republican senator.

>> Mitch McConnell is a tactical genius.

>> He has succeeded in establishing a conservative core for the next couple of decades, at least.

>> NARRATOR: Now on Frontline... >> We'’re living in the era of the McConnell court now.

>> NARRATOR: ..."“Supreme Revenge: Battle for the Court"”.

>> This is a Fox News alert, U.S. Supreme Court Justice Ruth Bader Ginsburg has died at the age of 87.

>> The pioneer of women's rights and gender equality.

>> President Trump may have opportunity to nominate a third person.

>> The president is at a rally right now.

Do you think he knows that this happened?

>> It was a surreal moment where something country-changing was happening and you have the president of the United States standing on stage unaware.

>> Mr. President, RBG!

>> NARRATOR: As he left the stage... >> Mr. President, RBG!

>> NARRATOR: ...a reporter delivered the news.

>> Ruth Bader Ginsburg has died.

Ruth Bader Ginsburg has passed away.

>> She just died?

>> Yes.

>> Wow.

I didn't know that, I just... you're telling me now for the first time.

>> I thought, "This is going to upend the election."

This was the October surprise just a few weeks before October.

>> Mourners gathered in front of the Supreme Court to pay tribute to Ruth Bader Ginsburg.

>> NARRATOR: For Democrats, the death of the iconic leader of the Court's liberal wing was a nightmare-- just over a month before the election.

>> It really was a stunning moment when we finally realized she was gone.

I was hoping she would be able to hold on for a new president, and I'm sure she was too.

>> As people around the nation react to the death of trailblazing Justice Ruth... >> NARRATOR: From her deathbed, Ginsburg's last request... >> Her family had said to her, "Is there anything you would like to write?"

She said, "My most fervent wish is that my seat not be filled until after a new president is elected."

>> NARRATOR: But that was not what Republican Senate Majority Leader Mitch McConnell had in mind.

>> What it meant for Senator McConnell was to cement a conservative majority on the U.S. Supreme Court.

It's something that McConnell has longed for, dreamed about, worked for during his entire career in the Senate.

>> NARRATOR: That night, McConnell reached the president on Air Force One.

>> McConnell told him two things.

He said, "First, I'm going to put out a statement that says we're going to fill the vacancy."

Second, he said, "You've got to nominate Amy Coney Barrett."

>> NARRATOR: Amy Coney Barrett, a 48-year-old conservative appeals court judge, McConnell's way of securing control of the Supreme Court for years to come.

>> To be able to say that, "We're going to have a conservative Court for another generation" is important to him.

For Mitch McConnell, the Court is everything.

>> This is going to be a rough battle on Capitol Hill... >> NARRATOR: Mitch McConnell's determination to transform the Supreme Court had been his life's work.

>> ...the dismay of several senators, U.S. Supreme Court nominee Clarence Thomas managed to elude... >> Potentially ensuring a conservative majority for decades... >> NARRATOR: Through bruising confirmation battles... >> ...Democrats to keep an open mind about Kavanaugh... >> NARRATOR: A struggle over ideology and power... >> ...White House has been packaging Clarence Thomas like a political candidate... >> ...expected to be one of the most contentious confirmation hearings in memory... >> NARRATOR: Ignited by a devastating defeat... >> ...rejecting the nomination of Judge Bork... >> ...Judge Bork, the long public ordeal... >> NARRATOR: And a promise to retaliate.

>> ...foreshadowing of what could be one the great Supreme Court nomination fights of the century... >> NARRATOR: The decades-long judicial wars started at the Reagan White House.

>> It is with great pleasure and deep respect for his extraordinary abilities that I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork to be an associate justice of the Supreme Court.

>> I thought, "Well, this man is an ideal person to be on the Supreme Court."

>> Judge Bork, widely regarded as the most prominent and intellectually powerful advocate of judicial restraint... >> Bork was sort of the hallmark of ultra-conservative legal thought.

This was going to dramatically change the court.

It was going to change it in a far more conservative direction.

>> NARRATOR: Reagan had already successfully appointed conservatives to a court he considered too liberal: Sandra Day O'Connor, William Rehnquist elevated to chief justice, Antonin Scalia.

And now, with the retirement of Lewis Powell, Reagan could secure conservative control of the court.

>> So this was an opportunity to really change the direction, not just for the next four years, but Republicans were hoping for the next 40 years.

>> NARRATOR: Reagan's attorney general made a phone call to Capitol Hill.

He wanted to alert one powerful Democratic senator.

>> Senator Kennedy got a note that Attorney General Meese was calling for him.

And he stepped out of the hearing into a phone booth and took the call.

And, and Meese told him that it was going to be Bork.

>> NARRATOR: Kennedy headed for the Senate chamber.

To the liberal senator from Massachusetts, Bork was a dire threat.

>> Everything that Bork had written and stood for meant that the civil rights and affirmative action push of the civil rights movement was in danger.

>> ...and the senator from Massachusetts is recognized... >> NARRATOR: It had only been an hour since Reagan's announcement.

Kennedy let the president and Bork know they were in for a fight.

>> Mr. President, I oppose the nomination of Robert Bork to the Supreme Court, and I urge the Senate to reject it.

>> And our staff said, "Hey, go hear what Kennedy is saying."

So I went over.

>> Robert Bork's America is a land in which women would be forced into back-alley abortions, Blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids.

>> Whoa, this sounds a little over the top.

I knew Robert Bork, he'd been a professor of mine, and I liked the guy, but certainly my journalistic instinct was, "Okay, the fight's on, the fat's in the fire.

This is really going to be something."

>> No justice would be better than this injustice.

I yield back the balance of my time.

>> When he finished, there was just silence.

I said, "What is all this (bleep)?

What, what are you doing?"

He said, "Just know that we'll have to destroy him."

>> And we were watching this on TV as we were drinking champagne in the counsel's office.

And I said, "Are you guys ready for this?"

And they said, "Oh, yeah, don't worry about it."

Well, they weren't ready.

Nobody was ready.

I don't think they had any clue what was coming.

(protesters shouting) >> NARRATOR: What was coming was a full-on political assault led by liberal Democrats, with protests, phone banks, and attack ads.

>> It was the first moment that you saw all-out war over a Supreme Court nominee.

It was the first example of the politics of destruction of the modern era.

>> The name and future of Robert Bork tops the agenda in Washington this morning.

>> And nowhere is the debate hotter than at the confirmation hearings for Supreme Court nominee Robert Bork... >> This is a NBC News Special Report... >> NARRATOR: The judiciary committee hearings, led by the Democrats, were broadcast on national television.

>> It is a momentous day in Washington D.C.... >> Judge Robert Bork began his battle for confirmation to the Supreme Court today.

>> It was kind of tense.

It was tense, it was TV lights-- very hot TV lights.

There's a certain sense, when you're the family member, that there's absolutely nothing you can do.

>> NARRATOR: It was a cast designed for classic television drama-- the attackers: Biden, Heflin, Metzenbaum, Leahy, and Kennedy.

>> Judge Bork looks at Senator Kennedy and Senator Kennedy now recognizes him.

>> I was glued to the television like everybody else.

I was as smitten by all the television theatrical drama that, that everybody else was.

>> NARRATOR: And there were the defenders-- conservative Republicans Simpson and Grassley.

>> As we're going down the line here this is the nominee and he is sort of the supplicant here before these senators.

They do hold the power of office over him, don't they?

>> The hearing will come to order please.

>> Somebody was going to win and somebody was going to lose.

How was this going to play out?

And that, I think, had a gripping effect on an audience.

>> I welcome everyone here this morning.

Judge Bork... >> NARRATOR: Joe Biden was the chairman of the committee, and at the time in his first bid for president.

>> Because Joe Biden was running for president, his staff set the hearing room up in a way to elevate him and to make him shine and turned it into a kind of TV reality show event.

>> The Senator Minority Leader, Republican leader... >> They chose particular places where cameras could go that would be the least flattering for Robert Bork.

>> Judge, do you swear to give the truth, the whole truth, and nothing but the truth, so help you God?

>> I do, Mr. Chairman.

>> Thank you.

Duly sworn.

>> Also when Joe Biden made his opening statement... >> In passing on this nomination to the Supreme Court... >> His aides were not behind him, so there was kind of an Oval Office quality almost to what he had to say.

So there was quite a lot of stagecraft involved as well by Biden.

>> NARRATOR: All eyes were on Biden's adversary, Robert Bork.

>> So the question was, "Okay, how is this guy going to present himself?

What's going to be the drill?"

>> ...many controversial statements he has made as a professor and a judge I've compiled... >> NARRATOR: For five days they clashed.

>> Can you derive a right to an abortion from the Constitution?

>> NARRATOR: They challenged Bork's views on controversial issues.

>> Yesterday you said women and Blacks who know your record do fear you.

>> It was epic.

I mean, they were discussing very serious things.

>> Do we have a Constitutional right to speak recklessly?

>> Busing and... >> ...were made in busing... >> ...law and order, privacy... >> Would we allow the police to search the sacred precincts of... >> ...abortion rights... >> ...the human life bill, which would have changed Roe against Wade... >> ...rights to determine all kinds of personal autonomy.

>> You do not believe that there is a general right of privacy that is in the Constitution?

>> Not one derived in that... >> NARRATOR: Bork's advisers told him to be succinct, not lecture the senators.

>> I'll be happy to answer the committee's questions.

>> NARRATOR: He did not follow their instructions.

>> Oh, no, oh, no, Senator.

>> Well, let me, let me pick that strain up.

>> All right, but I...

But I'd like to get on the record right now that I don't feel very free to disregard what Congress decided, that the mere fact that a law is outrageous is not enough to make it unconstitutional.

>> I didn't think it was going well.

I just thought it was torture.

You want to tap your dad on the shoulder and say, "I would say it this way."

Um, can't do that.

>> They have been hammering you with that thing for five days.

>> NARRATOR: Near the end, in an effort to save him, Bork supporter Wyoming senator Alan Simpson asked him one last question.

>> Why do you want to be an associate justice of the United States Supreme Court?

>> NARRATOR: Many believe Bork's answer was the death knell of his nomination.

>> I think it would be an intellectual feast.

>> Some more bad news for Supreme Court nominee Judge Robert Bork... >> ...by telling the senators the first attraction of the Supreme Court is the intellectual pleasure of it.

>> That seemed to be a big thing, "Oh, intellectual feast."

Oh, well, what the hell, you know, but that's Washington.

>> And instead of saying, "I want to do justice and show mercy and protect the rights of individuals," he says, "It'll be an intellectual feast."

And most people said, "Who's the dinner?"

(chuckles) >> Regular order will be followed.

The clerk will continue calling the roll.

>> Mr.

Bumpers, no.

Mr. Burdick.

>> NARRATOR: Bork's candor had become a liability... >> Mr. Chaffee.

>> NARRATOR: ...for Democrats and even some liberal Republicans.

It was a resounding defeat for Bork and the conservative Republicans, 42 to 58.

>> Mr. Cranston, no.

Mr. Kennedy.

Mr. Kennedy, no.

>> The job was to cut this guy down.

Get Bork.

It's now in the dictionaries of the United States and, and the world, it's called "getting borked."

(gavel pounds) >> NARRATOR: Joe Biden, the chairman, got much of the credit for bringing Bork down.

>> He's proud of what we did on the Court.

We shaped the direction of the Court for 30 years.

We kept that majority in place, basically the Warren Court consensus on the Court, on a lot of these issues, in place for 30 years.

Nothing to be ashamed of, very, very important.

>> ...senator from Kentucky.

>> I thank the chair.

>> NARRATOR: But Bork's defeat was a searing experience for first-term senator Mitch McConnell.

Enraged, he took to the Senate floor.

>> And so to Robert Bork, you happened to be the one who set the new Senate standard that will be applied, in my judgment, by a majority of the Senate prospectively.

Unfortunately, it got set over your dead body, so to speak, politically.

>> NARRATOR: McConnell threatened that he and his Republican colleagues would use the same tactics when it mattered.

>> We're going to do it when we want to.

And when we want to is going to be when the president, whoever he may be, sends up somebody we don't like.

>> He'll be darned if he's going to allow them to just get away with taking somebody out without paying a price for it later on down the road.

>> And if we don't like the philosophical leaning of the nominee... >> NARRATOR: It was a promise of revenge, a warning of what could happen if Republicans took control.

>> The danger of that approach, of course... ♪ ♪ >> Thurgood Marshall, a man who played a pivotal role in the redefinition of justice in America, is leaving... >> NARRATOR: When the nation's first African-American justice, Thurgood Marshall, retired, it was a pivotal moment for Senator Mitch McConnell... >> Thurgood Marshall is stepping down... >> NARRATOR: ...an opportunity to replace a liberal justice with a conservative.

>> Some senators implied it would be good to get another minority member... >> NARRATOR: One name stood out: Clarence Thomas, a deeply conservative African-American appeals court judge.

>> ...that I will nominate Judge Clarence Thomas to serve as associate justice of the United States Supreme Court.

>> NARRATOR: The White House was determined that Clarence Thomas was not going to be borked.

>> The individuals in the George H.W.

Bush administration knew what was coming.

They remembered vividly what had happened with Robert Bork.

>> Clarence Thomas could not have been prepared for the mob of still photographers... >> NARRATOR: The Republicans built a war room.

They prepped Thomas.

>> Senate hearings began on the Supreme Court nomination of... >> NARRATOR: They warned him it could get ugly.

>> Clarence Thomas, a black conservative originally from... >> NARRATOR: Once again, the proceedings would be a television event, here in the room where the Bork hearings captivated Americans.

>> ...see Judge Thomas now with the chairman of the Judiciary Committee... >> NARRATOR: The cast was familiar-- Biden, Kennedy, Simpson, Metzenbaum, Heflin.

This time, the Republicans had an advantage.

It would be hard for Biden and the Democrats to forcefully take on an African-American nominee.

>> When the hearings started, I was reminded of the fact that this nominee was supposed to replace Thurgood Marshall as the Black person on the United States Supreme Court.

(gavel banging) >> The hearing will come to order.

Good morning, Judge.

Welcome to the blinding lights.

It's a pleasure to, to have you here.

>> Politically they were in a very difficult position.

It's very difficult to attack an African-American judge, and they wanted to befriend him, not attack him.

>> Heck, you're six, seven years younger than...

I'm 48.

How old are you, Judge, 42, 43?

>> Well, I've aged over the last ten weeks, but, uh... (audience laughing) I'm 43.

>> 43 years old.

>> NARRATOR: Thomas' White House handlers, sitting behind him, waited for the Democrats' questions.

>> He was advised-- I know this-- to be very careful, to be very modest.

They're going to ask you about every controversial issue that has ever come before the Supreme Court.

>> ...in the area of civil rights... >> NARRATOR: Unlike Bork, Thomas wouldn't be so candid.

>> ...I don't remember or recall participating... >> He was like a steady brick wall.

He just wasn't going to answer anything, and, and he didn't.

>> I think that to take a position would undermine my ability to be impartial.

>> Senator Biden was determined to try to probe that and kind of take it as a Bork battle redux.

But unlike Bork, who said, "Yeah, these are my views, like them or not," Thomas disavowed everything.

>> What I am trying to do, Senator, is to respond to your question and at the same time not offer a particular view on this difficult issue of abortion... >> It was going to work.

He was squeaking through.

>> President Bush said he has no doubt Clarence Thomas will be confirmed... >> Confirmation hearings continue this morning in Washington for Clarence Thomas... >> NARRATOR: It had been eight days of hearings.

The committee would soon vote.

>> If Clarence Thomas is confirmed to the Supreme Court, his nomination is certainly the most controversial since Robert Bork's... >> NARRATOR: But National Public Radio reporter Nina Totenberg heard something unusual.

>> Biden says something about, "People have tried to smear you with personal allegations."

>> I believe there are certain things that are not at issue at all.

And that is his character, or characterization of his character.

>> NARRATOR: Totenberg was surprised.

No issues of character had been raised during the hearings.

>> And so I just started kicking tires, and I managed to get stuff.

>> NARRATOR: She discovered a secret-- allegations of sexual harassment by Clarence Thomas.

>> And pretty soon, I had Anita Hill's name, and I called her up.

>> NARRATOR: Anita Hill had worked with Thomas at the Equal Employment Opportunity Commission.

>> According to Hill's affidavit, Thomas talked about pornographic materials depicting individuals with large penises or breasts involved in various sex acts.

>> Here is a person who is in charge of protecting rights of women.

He is also really violating the laws that he's there to enforce.

>> It was just a giant explosion.

I, I... (laughs) I mean, I walked up to Capitol Hill... (makes explosion sound) It was like a mushroom cloud.

>> Good evening.

We begin tonight with the potential for political explosion on Capitol Hill.

>> Clarence Thomas ran into trouble today... >> Questions are growing over charges of sexual harassment against Thomas... >> NARRATOR: As the story broke, Senator Mitch McConnell rushed to the Senate floor.

>> As soon as the president announced his choice, the special interest groups lined up their firing squad and vowed to bork him and to kill him politically.

The process is being hijacked... >> NARRATOR: McConnell saw the allegations against Thomas as yet another liberal takedown.

>> McConnell understands implication and consequence better than any United States senator.

When you vote on legislation in the House and Senate, you're playing for the next election.

When you put in a judge, you're playing for the next generation.

>> The sexual harassment storm around Clarence Thomas is intensifying.

>> NARRATOR: Now McConnell would watch as Anita Hill threatened to derail Thomas' nomination.

>> The stage is set for what everyone anticipates will be a brutal hearing.

(gavel banging) >> Professor, do you swear to tell the whole truth and nothing but the truth, so help you God?

>> I do.

>> Thank you.

>> It seems to have been a nightmare for Joe Biden.

As a man, he felt uncomfortable about it.

As a white man, he felt uncomfortable taking Clarence Thomas, a Black man, on about it.

And the whole subject matter just made him incredibly uncomfortable.

>> Can you tell the committee what was the most embarrassing of all the incidences that you have alleged?

>> I think the one that was the most embarrassing was his discussion of, of pornography involving these women with large breasts and, and engaged in a variety of sex with different people or animals.

That was the thing that embarrassed me the most and made me feel the most humiliated.

>> Here in Illinois, women were just mesmerized by the hearings, outraged at what had happened.

They looked up and saw a very non-diverse United States Senate Judiciary Committee.

There was not a woman there, not to mention person of color.

It was just all these, like, cookie cutters, and folks were really horrified by it.

>> NARRATOR: The Republicans had watched Bork attacked for his ideology.

Now it was Thomas's character that was under assault, and they would go all out to defend their nominee.

>> My purpose is to find out what happened.

>> NARRATOR: Biden's close friend, Republican Arlen Specter, led the charge.

>> I find the references to the alleged sexual harassment not only unbelievable, but preposterous.

>> NARRATOR: He cast doubt on her memory.

>> How reliable is your testimony on events that occurred eight, ten years ago... >> There's this array of white men who were treating Anita Hill as kind of a hostile witness in simply attesting to what her experience with sexual harassment had been in Clarence Thomas'’s office.

>> You took it to mean that Judge Thomas wanted to have sex with you, but in fact, he never did ask you to have sex, correct?

>> No, he did not ask me to have sex.

>> So that was an inference that you drew?

>> Yes, yes.

>> She stood between Clarence Thomas and the Supreme Court.

They had to destroy her in order to get him confirmed.

If what she was saying was true, he had lied under oath.

>> Without objection, it will be placed in the record.

Again, I thank your family, thank you.

Adjourned until 9:00.

(gavel bangs) >> All America had its television sets tuned to the U.S. Senate... >> Nothing like what happened today has ever happened before... >> Washington, D.C., a city disgusted by the gutter politics played out on Capitol Hill.

>> NARRATOR: But it wasn't over.

Inside the Senate offices, Clarence Thomas prepared to answer Anita Hill's allegations.

Senator Alan Simpson was in the room.

>> We, we sat with Thomas.

And I told him my theory of political life: an attack unanswered is an attack believed.

Not only that, but agreed to.

And he was teary.

But I said, "You must have something to say."

He said, "I do."

He said, "I really do have something to say."

>> This is a circus.

It's a national disgrace.

And as far as I'm concerned, it is a high-tech lynching for uppity Blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.

>> I remember sitting behind a senator and hearing that and just feeling like a bomb had gone off in the room.

And it sucked all the oxygen out of the room.

>> 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 U.S., U.S. Senate rather than hung from a tree.

>> The question is on the confirmation of the nomination of Clarence Thomas of Georgia.

The clerk will call the roll.

>> Up to Robert Bork, there was a sense of civility to this, that you could disagree without destroying.

Robert Bork changed that, and Clarence Thomas confirmed it.

And with the Clarence Thomas nomination, everybody was watching.

>> This vote, the yeas are 52 and the nays are 48.

The nomination of Clarence Thomas of Georgia is hereby confirmed.

>> NARRATOR: While Biden and most Democrats voted no, Clarence Thomas prevailed.

He was 43 years old.

He vowed to stay on the Court for 43 more years.

In the years after Thomas' confirmation, McConnell watched as Democratic and Republican presidents tried to tip the balance of the Court.

>> President Clinton today nominated Ruth Bader Ginsburg... >> NARRATOR: With Republicans in the minority, Bill Clinton placed Ruth Bader Ginsburg and Stephen Breyer on the bench.

>> ...the president sent Congress the name of his nominee to fill the seat... >> NARRATOR: George W. Bush, with a Republican Senate, put John Roberts and Samuel Alito on the Court.

>> Barack Obama is projected to be the next... >> NARRATOR: With Democrats back in control, Barack Obama appointed Sonia Sotomayor and Elena Kagan.

>> Still, many Republicans are asking if she's the right person for the job... >> NARRATOR: Through it all, McConnell had been climbing to power inside the Senate.

Majority whip.

Republican leader.

And finally, majority leader.

>> There's nobody who's more focused on political conquest than he is.

There may not have been anybody who has spent his entire life calculating.

He knows more than everybody else.

It was how much he could win and how much power he could achieve.

>> NARRATOR: McConnell had real power, and still holding on to that grievance about what happened to Robert Bork, he waited for the right moment to use it.

>> This is CNN Breaking News... >> Breaking news just in to us here at CNN.

United States Supreme Court Justice Antonin Scalia has died.

>> Scalia is found dead in his, in his bed one day.

And what to do in this... in this moment of crisis becomes probably the defining moment of, of Mitch McConnell's career.

>> ...and breaking news, U.S. Supreme Court Justice Antonin... >> NARRATOR: McConnell immediately understood the political implications of Scalia's death.

>> Within a matter of moments, Mitch McConnell had a decision to make-- was he going to turn over entire control of the Supreme Court to Barack Obama at the end of his tenure?

Or was he going to make the decision as leader of the Senate that they weren't going to confirm any nominee.

>> With that vacancy, the question is, will a Republican-controlled Senate... >> NARRATOR: President Barack Obama's replacement would give Democrats a five-justice majority on the court.

>> Mitch McConnell doesn't even wait for the day to end after Antonin Scalia dies to put out a statement saying, in effect, "We're not going to let President Obama replace him."

>> Majority Leader Mitch McConnell just releasing a statement... >> ...this vacancy should not be filled until we have a new president.

>> He points to the fact that they're in the last year of Obama's term, and that's why they shouldn't have this seat filled, as if somehow or another, Obama's presidency ends before January of 2017.

>> "It doesn't matter if you name anybody or not, I'm... We're not considering anybody because it's too close to the election."

>> How shocking was that to you?

>> It was amazing to me.

I mean, they can say, "Oh there's precedent."

This was unprecedented.

>> Four-and-a-half weeks after Justice Scalia died, today President Obama... >> Friendly crowd in the Rose Garden there as President Obama nominates Merrick Garland... >> NARRATOR: With ten months left in his presidency, Obama was undeterred by McConnell.

>> Today, I am nominating Chief Judge Merrick Brian Garland to join the Supreme Court.

(audience applauds) >> President Barack Obama's thinking at the time was that by nominating Merrick Garland and putting forward a candidate that he thought was qualified, that he might have been able to persuade senators to lean on Senator McConnell to allow the confirmation hearings to go forward.

>> Thank you, Mr. President.

This is the greatest honor of my life... (voice breaking): Other than Lynn agreeing to marry me 28 years ago.

>> Here is a man of distinguished education, distinguished background.

This is the kind of person that should be on the Supreme Court.

And if it's Obama who's president, I was thrilled that he was appointing someone like Merrick Garland.

>> NARRATOR: Joe Biden, now vice president, would work his connections in the Senate to try to win over Republican support.

>> Five Republican senators have agreed to talk with Garland.

>> A handful of Republicans to break ranks, including some facing tough re-election bids... >> NARRATOR: McConnell had a mini-revolt on his hands.

>> I met with Merrick Garland.

I liked him.

He's a person who would have gotten 98 votes or 100 votes in the 1990s, just a few years before.

>> ...blasting his party's leadership for stonewalling the nomination process... >> To not even allow the Judiciary Committee to hold a hearing on his nomination just did not sit right with me.

>> Mitch McConnell joins us now from Capitol Hill.

Senator, thanks for being here.

>> NARRATOR: He fought back, hitting the airwaves.

>> The right-of-center world does not want this vacancy filled by this president.

We're not giving a lifetime appointment to this president on the way out the door, to change the Supreme Court for the next 25 or 30 years.

>> Senator Moran from Kansas said he thought maybe there should be a hearing.

And McConnell just said to him, "You keep talking like that, and I'm running a primary opponent against you," and Moran backed off.

McConnell was ruthless and brilliant.

>> NARRATOR: McConnell kept the Republicans in line.

There would be no hearings, no votes, no consideration of Judge Garland.

>> The one thing that I've learned about Mitch is if he says this is the way it is, that's the way it is.

>> (chuckles) I don't ever question McConnell.

I mean, I worked with him-- you don't want to mess with McConnell.

>> Democrats are outraged by Senate Majority Leader... >> NARRATOR: Mitch McConnell had done what had never been done-- he'd blocked any consideration of a Supreme Court nominee.

Now he needed one more thing-- a Republican president.

>> Donald Trump will be the 45th President of the United States.

>> Senator McConnell turned to his colleague and said, "Looks like we're going to be making America great again."

I have to think that a big part of that is what he saw as a coming to fruition of the plans that he had for the Supreme Court.

>> NARRATOR: With Trump in the White House, Mitch McConnell would be able to fill Scalia's seat.

Within months, conservative favorite Neil Gorsuch joined the court.

>> ...confirmed as Justice Gorsuch... >> NARRATOR: Then, a year later, another opportunity.

>> ...monumental moment... >> NARRATOR: Veteran Justice Anthony Kennedy unexpectedly resigned.

>> Kennedy really was the middle of the court.

So it's, it's a really serious moment, the most serious moment in the balance of the court, really, since even before Bork.

>> NARRATOR: Mitch McConnell understood the stakes.

Kennedy's replacement could shift the Court further to the right.

>> President Trump's pick is in for the next Supreme Court nominee... >> Brett Kavanaugh to replace the retiring... >> NARRATOR: McConnell and Trump again swung into action.

The president nominated Judge Brett Kavanaugh.

>> Kavanaugh is the perfect McConnell nominee.

He's very conservative on economic issues, on executive power issues.

He's the perfect blending of establishment and sort of red-state-based politics.

(gavel banging) >> NARRATOR: At the confirmation hearings, the Democrats immediately put up a fight.

>> Mr. Chairman, I'd like to be recognized to ask a question.

>> Mr. Chairman, it's a pending motion... >> If we don't even know what the rules are, how can we... >> I'd like to respond to... >> Mr. Chairman... >> Mr. Chairman, we waited for more than a year with a vacancy on the Supreme Court.

The treatment was shabby of Merrick Garland, President Obama's nominee... >> Democrats are really mad about Garland that happened in 2016, very recent history.

>> People see through this.

>> Republicans are still mad about Bork.

>> To my friends on the other side, you can't lose the election and pick judges.

If you want to pick judges, you better win.

>> This stuff is now intensely polarized and super-partisan.

(gavel banging) >> NARRATOR: And as the Republican-led hearings got underway, Brett Kavanaugh would follow the Clarence Thomas playbook.

>> I can't give you an answer on that hypothetical question.

Senator, that sounds like a hypothetical, I... >> NARRATOR: He wouldn't engage.

>> ...that's the hypothetical that you're asking me...

Senator, I think that hypothetical that you're asking is... ...a hypothetical that, uh, about any statute that you're asking me... >> NARRATOR: From his office, McConnell watched the hearings.

It all seemed to be going smoothly.

>> What you fear is the unknown.

You don't know what you don't know.

And if there is something out there, some bombshell to drop, or some way of captivating media attention, then you could have problems.

>> Dropping a bombshell exactly one week before the committee is set to vote... >> And then you begin to see the newspapers' vague references to anonymous allegations that had been lodged against Brett Kavanaugh about his conduct.

>> An allegation from his... >> NARRATOR: The allegation-- sexual assault.

>> Word of her leaks out without her name at first, and then when there's, the news breaks, just like with Anita Hill, her name is leaked.

>> Her name is Christine Blasey Ford.

>> The woman's name is Christine Blasey Ford.

>> Christine Blasey Ford... >> NARRATOR: McConnell wouldn't back down from the coming fight.

>> I think he was furious.

You know, this was the torpedo that he dreaded.

>> Christine Blasey Ford described Kavanaugh as stumbling drunk... >> NARRATOR: He was worried about losing the Senate in the upcoming midterms.

He had to get Kavanaugh confirmed fast.

>> You know, those words of McConnell, "You will rue the day," back in the Bork fight?

Those equally applied to him if he lost the Kavanaugh fight, because the Democrats, if they controlled the Senate after this election, he would rue the day of what he'd done in Garland.

>> Majority Leader is recognized.

>> NARRATOR: McConnell launched a counterattack.

>> Senate Democrats and their allies are trying to destroy a man's personal and professional life on the basis of decades-old allegations... >> NARRATOR: Bork.

Thomas.

Now Kavanaugh.

The fight for the court had become personal.

McConnell blamed the Democrats.

>> Democrats wouldn't let a few inconvenient things get between them and a good smear.

It's despicable.

>> He's never faced a fight like this.

He never faced one where he could go, go down like this.

And it was right there on the razor's edge.

♪ ♪ >> Just moments away now from the historic testimony of Christine Blasey Ford before the Senate... >> Dr. Ford has arrived here on Capitol Hill to testify in public for the first time.

>> It will certainly be an historic day on Capitol Hill.

>> Remember, nobody had seen her and nobody had heard from her.

Not even the senators.

So it was a total surprise.

>> (voice shaking): I am here today not because I want to be.

I am terrified.

I am here because I believe it is my civic duty to tell you what happened to me while Brett Kavanaugh and I were in high school.

>> When you realized how genuinely terrified she was to be there, it shocked a lot of the older, longer-serving senators, that once again, this issue was being brought into the public sphere.

>> (voice breaking): I believed he was going to rape me.

I tried to yell for help.

When I did, Brett put his hand over my mouth to stop me from yelling.

This is what terrified me the most, and has had the most lasting impact on my life.

It was hard for me to breathe, and I thought that Brett was accidentally going to kill me.

>> It was, of course, a larger-than-life moment.

Christine Blasey Ford had to go before the eyes of a nation and the world.

>> I thought she was enormously courageous, enormously persuasive.

>> She was very polite and just looked dead honest.

>> It was a huge burden on her to come forward.

>> It was impossible not to be riveted with her testimony.

She was compelling.

>> NARRATOR: Some of the senators that day had also been at the Clarence Thomas hearings.

Patrick Leahy was one.

>> When Dr. Ford testified, I asked her, "What do you remember of that incident?"

And I think everybody in that hearing remembers her answer.

>> The laughter, the laugh-- the uproarious laughter between the two, and they're having fun at my expense.

I was, you know, underneath one of them while the two laughed, two friends having a really good time with one another.

>> NARRATOR: It looked bad for Brett Kavanaugh and the Republicans.

>> This is over, this was devastating.

>> I believe those who wanted to believe her did.

>> The mood among Republicans on the Hill was one of gloom.

>> We had a meeting right after her testimony.

And I could tell that my colleagues were moved and they were saying, you know, "He'd better be good.

He'd better have an answer, because she sounds very credible."

>> The worst-case scenario for Kavanaugh and his defenders was what just transpired.

>> NARRATOR: At the White House, the president of the United States had also been watching.

>> Both the president and Leader McConnell found her testimony to be incredibly compelling.

>> I was in the White House the entire day, including watching the testimony of both Ford and Kavanaugh.

The president watched it live.

And the president and I have both said, each of us have said publicly, she gave, she rendered compelling testimony.

>> NARRATOR: The president picked up the phone.

On the other end-- Mitch McConnell.

>> Both of them are kind of testing each other a little bit.

"Where are you at on this?"

You know, "How strong are you?"

And McConnell basically says to the president, "You don't worry about me.

I'm strong as mule piss."

That's his quote.

"I'm strong as mule piss."

In other words, he's not going to let up, he's not going to give up, he's not going to surrender.

♪ ♪ >> To say that everything that could have gone wrong for Brett Kavanaugh has is an understatement.

>> The impetus is on Judge Kavanaugh.

They did not have the votes in the Senate... >> Do not underestimate the importance of the next few hours for Brett Kavanaugh.

>> At some point, if you poke a stick and you torment that person and you attack that person, at some point, that individual's going to fight back.

>> I categorically and unequivocally deny the allegation against me by Dr. Ford.

I never had any sexual or physical encounter of any kind with Dr. Ford.

>> It was like watching Clarence Thomas all over again.

This was another version of the "high-tech lynching."

>> This confirmation process has become a national disgrace.

But you have replaced advice and consent with search and destroy.

>> NARRATOR: Clarence Thomas had invoked race.

Now Brett Kavanaugh launched a partisan attack on the Democrats.

>> This whole two-week effort has been a calculated and orchestrated political hit fueled with apparent pent-up anger about President Trump, revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups.

>> It has become this completely politicized drama.

He took the allegations away from Christine Blasey Ford and turned it into a huge fight between Democrats and Republicans.

He's trying to rally all the Republicans to his side.

>> NARRATOR: Kavanaugh had become a combatant in the war between Republicans and Democrats.

>> Does this reflect what you are?

Does this yearbook reflect your focus on... >> NARRATOR: They squared off over his high school yearbook.

>> That's easy, yes or no, you don't have to filibuster... >> NARRATOR: And his drinking.

>> Oh, no, no, no, no, no, you got this up, I'm going to, I'm going to talk about my high school... No, no, I'm going to talk... >> Let him answer!

>> I'm going to talk about my high school record if you're going to sit here and mock me.

>> Senator Graham.

>> NARRATOR: On the Republican side, Lindsey Graham led the fight.

>> This is the most unethical sham since I've been in politics.

Boy, you all want power.

God, I hope you never get it.

I hope the American people can see through this sham.

God, I hate to say it because these have been my friends, but let me tell you, when it comes to this, you're looking for a fair process?

You came to the wrong town at the wrong time, my friend.

This is not a job interview.

This is hell.

>> This is... >> This is going to destroy the ability of good people to come forward because of this crap.

Your high school yearbook!

>> It serves to rally Republicans and make it an us- versus-them kind of issue.

And if it's an us-versus-them kind of issue, when you have the majority, that's what you want.

>> The clerk will call the roll.

>> Mr. Cruz.

>> Aye.

>> Mrs. Ernst.

>> Aye.

>> Mr. Flake.

Mr. Gardner.

>> Aye.

>> Ms. Duckworth.

>> NARRATOR: With McConnell's Republicans almost entirely in line... >> Mr. Toomey.

>> NARRATOR: Brett Kavanaugh was confirmed.

>> Mr. Udall.

>> NARRATOR: Partisanship would now reign.

>> More than any of the other fights, the Kavanaugh nomination hearings really ended up tarnishing the Court's reputation as an apolitical institution.

What seemed like a sort of shocking freak occurrence when it happened with Bork, now seems like a fait accompli with Kavanaugh.

He now is up there on the bench and everybody assumes it's only because of politics.

>> NARRATOR: With Kavanaugh's confirmation, McConnell had moved the court to further to the right.

But then, just over a month before the 2020 election, the death of the Court's most prominent liberal, Ruth Bader Ginsburg.

Once again, it was Mitch McConnell's moment.

He was ready.

>> This is a conversation that he has been having with his members at this point for a year or more.

And McConnell made it very clear to his colleagues, that if there is a vacancy, whomever that vacancy is presented by, we will fill it.

>> NARRATOR: To McConnell, it didn't matter that it was only weeks before the election and that he'd opposed filling a seat in the last year of the Obama presidency.

>> The fact that it was occurring while the presidential election was underway, unprecedented.

It's never happened in the history of the Senate, for all of their explanations and excuses.

It's never been done.

And particularly in light of what happened four years ago, it really seemed to be hypocritical.

>> NARRATOR: But McConnell shrugged off the charges of hypocrisy.

>> It wouldn't phase Senator McConnell to be called "ruthless" or "determined" or whatever adjectives or labels people might put on his behavior.

He did it because he could.

>> Today it is my honor to nominate Judge Amy Coney Barrett.

>> NARRATOR: With election day fast approaching... >> Do you solemnly swear the testimony you're about to give this committee... >> NARRATOR: ...the hearings for Amy Coney Barrett were a rush job.

>> I do... >> Everything moved really rapid-fire fast.

And, of course, the goal was to have her take her seat before the November 3rd election.

>> ...the hearing to confirm... >> He said, "We're here to confirm Justice Barrett."

"Confirm," which basically gave away the whole deal right there.

It's like, "We're not considering anything, we're just here to vote."

>> This is probably not about persuading each other unless something really dramatic happens.

All Republicans will vote yes and all Democrats will vote no.

>> It was done in a hurry-up fashion.

There was not even the routine investigation of opinions and writings and speeches.

This was done in a hurry and it showed.

>> To my Democratic colleagues... >> NARRATOR: The partisanship was on full display.

>> Our Republican colleagues are riveted on rushing a judge through this sham process.

>> This was a hypocritical tire- squealing 180 for many Republican colleagues.

>> NARRATOR: Democrats complained... >> Hypocritical, illegitimate process... >> NARRATOR: ...but in the minority, they were powerless to do anything... >> Mitch McConnell had the votes from start to finish.

He knew it and he behaved that way all along.

>> On this vote, the yeas are 52... >> NARRATOR: Barrett was confirmed: 52 Republicans voted yes.

>> ...Amy Coney Barrett... >> NARRATOR: All of the Democrats voted no.

>> ...to the Supreme Court of the United States is confirmed.

(gavel banging) >> This most recent Barrett confirmation may have been the only one in recent memory that was purely partisan.

It has become so bitterly partisan that the American people have no choice but to think of it as this individual is a... is reflective of the people who vote against him or her or the people who vote for him or her.

>> NARRATOR: Just a week before the presidential election, the new justice was sworn in.

>> I, Amy Coney Barrett, do solemnly swear... >> That I will support and defend... >> NARRATOR: Fellow conservative Clarence Thomas did the honors.

>> ...so help me, God... >> So help me, God.

(applause) >> For Senator McConnell this would be the achievement of his life's goal.

With Justice Barrett on the Court now you have a solid 6-3 conservative split on the court.

>> NARRATOR: Three decades after Bork, it was now Mitch McConnell's Supreme Court.

>> He has been working towards this moment his entire professional career, and it was all coming to fruition.

All of the judicial wars that started with Robert Bork and Justice Thomas, the Kavanaugh situation.

Now was the moment that he finally got what he came for.

>> He succeeded in establishing a conservative Court for the next couple of decades, at least.

That's an accomplishment, if you look at that alone.

I think in the process, you know, we've damaged another institution, the Senate.

I don't think it's a good trade overall.

But in the end, will it have been worth it?

I don't know.

>> NARRATOR: Senate Majority Leader Mitch McConnell has just won a seventh term... >> NARRATOR: On election day... >> McConnell is the longest- serving Republican senator... >> NARRATOR: Mitch McConnell won another six years in the Senate.

>> ...we've reached a historic moment in this election... >> NARRATOR: He'll face Joe Biden as president, an old adversary from the judicial wars.

>> ...president of the United States... >> NARRATOR: Now, the Supreme Court that Mitch McConnell built... >> ...conservative majority on the Court for the foreseeable future.

>> NARRATOR ...looms over the new president... >> Meanwhile, Democrats are worried about the country's future... >> NARRATOR: ...and a Washington as divided as ever.

>> A lot of eyes going to be on the Supreme Court.

>> Huge number of issues coming across the Supreme Court... >> ...among those issues are sex discrimination, gun rights, abortion, and immigration... >> ...a huge array of enormously important issues... Captioned by Media Access Group at WGBH access.wgbh.org >> For more on this and other "Frontline" programs, visit our website at pbs.org/frontline.

♪ ♪ FRONTLINE's, "Supreme Revenge: Battle for the Court" is available on Amazon Prime Video.

♪ ♪