The Ugliness Started With Bork

The Ugliness Started With Bork

Joe Nocera
New York Times
October 21, 2011

On Oct. 23, 1987 — 24 years ago on Sunday — Robert Bork’s nomination to the Supreme Court was voted down by the Senate. All but two Democrats voted “nay.”

The rejection of a Supreme Court nominee is unusual but not unheard of (see Clement Haynsworth Jr.). But rarely has a failed nominee had the pedigree — and intellectual firepower — of Bork. He had been a law professor at Yale, the solicitor general of the United States and, at the time Ronald Reagan tapped him for the court, a federal appeals court judge.

Moreover, Bork was a legal intellectual, a proponent of original intent and judicial restraint. The task of the judge, he once wrote, is “to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know.” He said that Roe v. Wade, which legalized abortion, was a “wholly unjustifiable judicial usurpation” of authority that belonged to the states, that the court’s recent rulings on affirmative action were problematic and that the First Amendment didn’t apply to pornography.

Whatever you think of these views, they cannot be fairly characterized as extreme; Ruth Bader Ginsburg, among many others, has questioned the rationale offered by the court to justify Roe v. Wade. Nor was Bork himself an extremist. He was a strongly opinionated, somewhat pugnacious, deeply conservative judge. (At 84 today, he hasn’t mellowed much either, to judge from an interview he recently gave Newsweek.)

I bring up Bork not only because Sunday is a convenient anniversary. His nomination battle is also a reminder that our poisoned politics is not just about Republicans behaving badly, as many Democrats and their liberal allies have convinced themselves. Democrats can be — and have been — every bit as obstructionist, mean-spirited and unfair.

I’ll take it one step further. The Bork fight, in some ways, was the beginning of the end of civil discourse in politics. For years afterward, conservatives seethed at the “systematic demonization” of Bork, recalls Clint Bolick, a longtime conservative legal activist. The Atlanta Journal-Constitution coined the angry verb “to bork,” which meant to destroy a nominee by whatever means necessary. When Republicans borked the Democratic House Speaker Jim Wright less than two years later, there wasn’t a trace of remorse, not after what the Democrats had done to Bork. The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one.

It is, to be sure, completely understandable that the Democrats wanted to keep Bork off the court. Lewis Powell, the great moderate, was stepping down, which would be leaving the court evenly divided between conservatives and liberals. 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.

But liberals couldn’t just come out and say that. “If this were carried out as an internal Senate debate,” Ann Lewis, the Democratic activist, would later acknowledge, “we would have deep and thoughtful discussions about the Constitution, and then we would lose.” So, instead, the Democrats sought to portray Bork as “a right-wing loony,” to use a phrase in a memo written by the Advocacy Institute, a liberal lobby group.

The character assassination began the day Bork was nominated, when Ted Kennedy gave a fiery speech describing “Robert Bork’s America” as a place “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters,” and so on. It continued until the day the nomination was voted down; one ad, for instance, claimed, absurdly, that Bork wanted to give “women workers the choice between sterilization and their job.”

Conservatives were stunned by the relentlessness — and the essential unfairness — of the attacks. But the truth is that many of the liberals fighting the nomination also knew they were unfair. That same Advocacy Institute memo noted that, “Like it or not, Bork falls (perhaps barely) at the borderline of respectability.” It didn’t matter. He had to be portrayed “as an extreme ideological activist.” The ends were used to justify some truly despicable means.

Today, of course, the court has a conservative majority, and liberal victories are, indeed, being overturned. Interestingly, Bolick says Bork’s beliefs would have made him a restraining force. Theodore Olson, who served as solicitor general under George W. Bush, also pointed out that after Bork, nominees would scarcely acknowledge that they had rich and nuanced judicial philosophies for fear of giving ammunition to the other side. Those philosophies would be unveiled only after they were on the court.

Mostly, though, the point remains this: The next time a liberal asks why Republicans are so intransigent, you might suggest that the answer lies in the mirror.

I remember that whole nasty affair, and I have to say I pissed as hell at how the Democrats treated Bork. They had no shame in telling outrageous and highly insulting lies about this man.

I can say that I've not forgotten this slap in face. And the Democrats have used this tactic ever since.

I wasn't into politics back then and I vaguely remember his confirmation hearings.

TexasBlue wrote:I wasn't into politics back then and I vaguely remember his confirmation hearings.

I was deeply involved in politics at that time. This was a couple years before I would switch party affiliations and join the Libertarian Party (that didn't last long).

I was extremely excited about someone of Bork's stature and constitutional constructionist leanings sitting on the Supreme Court. Sadly, we got screwed.

If you want to get a sense of the expanse of Bork's knowledge, you should read his book "Slouching Toward Gomorrah" - it is an outstanding read.

I've done some reading on the internet on the guy and he seems to be the real deal. Now he's old and cranky.

TexasBlue wrote:I've done some reading on the internet on the guy and he seems to be the real deal. Now he's old and cranky.

Well, at 84 one has a right to be free to speak one's mind.

But then again, Bork has never been the politically correct type. One of his more endearing qualities IMHO.

But he was and is the real deal... and then some.