Why Conservatives Need to Stop Whining About Robert Bork

One of the great triumphs of Republican propaganda has been to turn the word “Bork” into a verb. The defeat of Robert H. Bork’s Supreme Court nomination in 1987 has come to stand for unfair attacks and political obstructionism. Joe Nocera’s recent New York Times column is the latest example of Bork being turned into a martyr who explains and perhaps justifies many dysfunctional aspects of American politics. The failure of the Bork nomination, Nocera asserts, was “obstructionist, mean-spirited and unfair.“ This Republican rhetorical triumph is particularly impressive because the claims about Bork are utter nonsense. The defeat of Bork was based on legitimate reasons, was not unprecedented, and was done the right way.

Senate obstructionism is a legitimate problem – the fact that it is difficult to get not only federal judges confirmed is a real problem for American government. But the claim that the defeat of Bork was “obstructionist” is transparently wrong. The Democratic majority scheduled Bork’s confirmation hearings in a timely manner and allowed an up-or-down vote. Bork was not (unlike LBJ’s Supreme Court nominee Abe Fortas) filibustered or left in limbo -- he was defeated fair and square by a bipartisan 58-42 vote in the Senate after getting only 5 out of 16 votes from the Senate Judiciary Committee. The charge of obstructionism also implies that the Democrats were unwilling to confirm anyone, but the more moderate conservative Anthony Kennedy was subsequently confirmed by the Senate by the razor-thin margin of 97-0.

Nocera, like many Bork apologists, argues that the Senate acted unfairly by considering Bork’s ideology as well as his basic qualifications (which were clearly sufficient.) But for the Senate to consider a nominee’s philosophy was neither unprecedented nor unreasonable. For example, Herbert Hoover’s nomination of John Parker was rejected in 1930 largely because of concerns about his civil rights record. And to argue that the Senate should concern itself solely with formal qualifications at the same time that President Reagan was systematically packing the federal judiciary with young conservatives is absurd. Robert Bork was nominated in large measure because of his impeccably conservative track record; it’s not clear why the Senate shouldn’t be able to evaluate him on this basis.

So the defeat of the Bork nomination wasn’t obstructionist. But was the criticism of him unfair or excessively harsh? Like most Bork apologists, Nocera cites a speech made by Senator Ted Kennedy after his nomination was announced, in which he said that “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, 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 our democracy.”

Nocera is typical in that he quotes Kennedy as if his comments were self-evidently dishonest, without bothering to cite anything in the speech that was factually wrong. This is understandable because everything in Kennedy’s speech was based on Bork’s public writings. Bork did write an article for the New Republic denouncing the Civil Rights Act as unconstitutional and “based on a principle of unsurpassed ugliness.” (Nor was Bork’s opposition to the Civil Rights Act purely an academic exercise; according to Rick Perlstein’s Before the Storm, Bork was instrumental in convincing Republican presidential candidate Barry Goldwater to oppose it.) Bork was a critic of the exclusionary rule – which prevents the state from profiting from illegal searches and hence inhibits them. He wrote a widely discussed article in 1971 that the free speech clauses of the First Amendment should “not cover scientific, educational, commercial or literary expressions as such.” He was a long-standing critic not only of Roe v. Wade but the right to privacy in general, and whether opponents of reproductive rights wish to acknowledge it or not bans on abortion lead to women getting maimed or killed by back-alley abortions.

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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