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Why Conservatives Need to Stop Whining About Robert Bork

The defeat of Bork's Supreme Court nomination now stands for obstructionism. But his defeat was based on legitimate reasons.

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The point about Roe is particularly crucial, because the Senate’s rejection of Bork saved Roe. In 1992, the Supreme Court re-affirmed Roe by a 5-4 vote, with Bork’s replacement Anthony Kennedy as the swing vote in the majority. Had Bork confirmed, abortion would be illegal in a significant number of states, and important extensions of the right to privacy to gays and lesbians would have been thwarted. Nocera does not deny Bork’s opposition to Roe, but tries to get around it by claiming that “Ruth Bader Ginsburg, among many others, has questioned the rationale offered by the court to justify Roe v. Wade.”

This argument is technically true but grossly misleading. Ginsburg argued that a woman’s reproductive rights should have been anchored in the equal protection clause of the Constitution; as she has demonstrated on her long and distinguished tenure on the Court, she is an eloquent defender of privacy and reproductive rights. Bork, conversely, believed that Roe v. Wade was an abomination comparable to the Supreme Court’s infamous Dred Scott decision (which denied Congress the authority to ban slavery in federal terroitories and denied that any person of color born on American soil could be an American citizen.) To equate the positions of Bork and Ginsburg is beyond ludicrous.

But even on issues (such as the Civil Rights Act) where the relevant constitutional law is more settled, the points Kennedy raised about Bork’s record were important. The fact that Bork had been on the wrong side to virtually every important issue involving civil rights and civil liberties at the time these issues were being decided is surely relevant to determining how he would have evaluated new issues throughout his tenure. Anthony Kennedy may be receptive to a right to same-sex marriage, for example, while Bork certainly would not have been. Kennedy’s speech was powerful not because it was dishonest, but because Bork and his defenders could not adequately answer why a man with this kind of record was suited to act as a guardian of the country’s constitutional freedoms.

The real meaning of “Borking,” then, seems to be the idea that it is dirty politics for progressives to accurately describe a conservative’s record. But it isn’t, and Nocera and Bork’s legions of apologists have turned history on its head. The defeat of Robert Bork is a rare case where the Senate did something it could be proud of. Democrats should do what they can to counter the myth that “Borking” was a bad thing.

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