In Praise of 'Borking'

Fifteen years ago this fall, the Senate rejected Robert Bork's nomination to the Supreme Court, an anniversary that reminds us how much is at stake in the struggle for control of the Senate.

President Bush has hit the campaign trail telling voters that the "lousy job" Senators are doing on judicial nominations is one reason "we need to change the Senate." The President wants a Senate that will passively allow him to fill the bench with ultraconservative judges.

Political groups working toward that same goal have created a false history around the Bork nomination battle. Pundits and politicians alike have adopted the phrase "Borking" to mean unfairly savaging a judicial nominee with personal or partisan attacks.

The truth is just the opposite. The campaign against Bork's confirmation was not about his politics or personal life, but about his legal and judicial philosophy. The two weeks of televised hearings on Bork's nomination were the best, most in-depth discussion of the Constitution that most Americans have ever experienced.

So in the interest of historical accuracy, "Borking" should refer to a thoughtful, intense debate about the Constitution and the role of the judiciary, not only among members of the Senate but also among the American people. Right now we need much more of it.

In 1987, I chaired the national coalition that mobilized hundreds of thousands of Americans to oppose Bork's confirmation. Since then, Bork's own words have confirmed that if we who opposed his confirmation were guilty of anything, it was understatement.

Bork has vehemently attacked Supreme Court decisions upholding reproductive choice, overturning an anti-gay state constitutional amendment, and protecting the use of the flag in political protest. There is no question that he would have cast the deciding vote in cases that would have weakened or eviscerated civil rights laws, a woman's right to choose, First Amendment freedoms, privacy rights and other long-cherished rights.

He once even called for a constitutional amendment allowing Congress to reverse any Supreme Court decision by majority vote, dismantling the basic constitutional principle of checks and balances.

While President Reagan called the Senate's rejection of Bork "a tragedy for our country," the real tragedy would have been granting Bork a lifetime seat on the Supreme Court. Keeping him off the Court ranks among the most important achievements of the progressive coalition over the past seven decades. Thank goodness Robert Bork is writing angry books and not Supreme Court decisions.

But 15 years later, those achievements are imperiled once again. A conservative majority led by Justices Antonin Scalia and Clarence Thomas are embracing Bork's states' rights approach to the Constitution. His ideological heirs are being pushed by the White House for vacancies on the federal appeals courts, which hear far more cases than the Supreme Court and are often a stepping stone for future justices.

And sometime soon, we could be seeing the nomination of the next Robert Bork. It has been eight years since the last Supreme Court nomination, the longest interval between vacancies in 179 years. Since 1950, there has been a Supreme Court nomination appointment on average once every two years. We are long overdue.

Future nominees will have a tremendous impact on our constitutional framework and on the freedoms of future generations to come. President Bush has said Justices Scalia and Thomas are his models for future Supreme Court nominations. Their own written opinions make it clear that a Court dominated by their judicial philosophy could go much further than the current Court, overturning more than 100 precedents on civil rights enforcement, privacy and reproductive choice, environmental protection, religious liberty and much more.