The Bork Nomination, 24 Years On

I have to admit that when I saw the headline “The Ugliness Started with Bork” over an op-ed column by Joe Nocera in The New York Times, I reckoned it would be yet another chapter in the long-running left-liberal campaign to demonize the great jurist Robert H. Bork. I was wrong. Today — October 23 — is the 24th anniversary of the Senate’s shameful vote against Bork’s nomination to the Supreme Court. Nocera wrote, if not to apologize, exactly, then at least to acknowledge that the poisonous campaign to discredit Bork — unprecedented in its nastiness — was “the beginning of the end of civil discourse in politics.”


That’s probably correct. And while politics by its very nature is a partisan business that elicits strong emotions, and strong rhetoric to match, the campaign against Judge Bork was unparalleled in its ferocity and — something Nocera touches upon but gingerly — patent mendacity. Supreme Court nominees had been voted down before (and since). But had any previous candidate with what Nocera right calls Bork’s scholarly “pedigree” and “intellectual fire power” ever been voted down? After all, at the time he was tapped by Reagan, Bork had been a professor of law at Yale, former solicitor general of the United States, and a federal appeals court judge. He was — and is — also a prominent and articulate legal scholar, arguing forcefully for the doctrine of “original intent,” i.e., that a judge’s primary task is to discern the law in the light of the Constitution.

Democrats, as Nocera acknowledges, recognized that were they to follow the usual Senate procedure in reviewing Bork’s nomination, he would almost certainly have been appointed to the Supreme Court. Instead, they knowingly endeavored to besmirch his reputation and record, portraying him not as a serious and thoughtful legal scholar (which he was), but as “a right-wing loony.” Nocera recalls an ad that “claimed, absurdly, that Bork wanted to give ‘women workers the choice between sterilization and their job.'” But that was just business as usual for the hyenas — including many at The New York Times — who poured through Judge Bork’s trash and movie rental receipts in the hope of discovering something embarrassing.

Perhaps the most disgusting of all those disgusting performances was committed by one of America’s most disgusting families, the Kennedys. The day Robert Bork was nominated, Senator Ted Kennedy rose in the Senate and said this:


Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit down at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of democracy.

This was not the expression of a difference of opinion. It was a stream of outright lies that escaped the designation of slander only because the speaker enjoyed the immunity of Senatorial privilege.

Nocera quotes from, and disapproves of, Kennedy’s unfounded denunciation. Yet I think there was a certain equivocation about his criticism. Kennedy’s rant was an exercise in “character assassination,” said Nocera, but he also described it as a “fiery speech” — an impressive thing in a speech, to be “fiery,” no? Perhaps it’s because of where he was writing, but I sense a current of equivocation, “faults-on-both-sides,” splitting-the-difference in Nocera’s piece. Sure, Democrats were completely unfair to Bork, he admits, and they set an example that has sullied political discourse ever since. And yet, it was “completely understandable that the Democrats wanted to keep Bork off the court. … There was tremendous fear that if Bork were confirmed, he would swing the court to the conservatives and important liberal victories would be overturned — starting with Roe v. Wade.”


Do you sense a non sequitur there? Democrats disagreed with Robert Bork that the law was something judges should follow, not invent, ergo . . . what? Ergo it’s “understandable,” i.e., at the end of the day it’s excusable for U.S. senators to get up on the floor of the Senate and lie? Nocera suggests that when asked why Republicans are “so intransigent,” liberals ought to “look in the mirror.” Let’s leave the question of who is more intransigent to one side. The deeper question, I think, is one of basic honesty — or rather, in the case of the way Robert Bork was treated — revolting dishonesty.


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