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Peggy Noonan Defends Robert Bork

Peggy Noonan, as Bob Shrum rightfully points out, attempts a bit of history revisionism with her defense of the poor downtrodden Robert Bork and the r
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Peggy Noonan, as Bob Shrum rightfully points out, attempts a bit of history revisionism with her defense of the poor downtrodden Robert Bork and the reasons he was not confirmed for a position on the Supreme Court.

NOONAN: Mm-hmm. Look, I think that since the Bork hearings it has been very hard for young lawyers who want to go forward in the judiciary to realize anything but this. If you are colorful, if you are interesting, if you are forthcoming and share your thoughts and philosophy and views on the way up, when you get to your confirmation hearing for the court, they will put a noose around your head, hanging you with every interesting thing you've ever said. I, I happen to think the Senate Judiciary Committee has not done a good job of vetting and bringing out the thoughts of, of Supreme Court nominees for a long time. I think they should change. Let those nominees be forthcoming, let them speak. And I think this whole sense we've got that you can't say anything interesting on the way up ought to just go away. Oliver Wendell Holmes today would not be allowed on the U.S. Supreme Court because he said such fabulous, interesting things.

SHRUM: He wouldn't have, he wouldn't have to have a confirmation hearing, Peggy, because they didn't have them in those days.

NOONAN: Well, fair enough. Fair enough. But we do have them now, and they ought to summon thought, and they ought to respect individuality and taking a different view, and creativity, frankly.

SHRUM: Well, look, here's what should...

NOONAN: Those things shouldn't kill you.

Yeah...colorful and interesting. That's not exactly how I'd describe him. Here's an op-ed from People For the American Way back in 1987 explaining the reasons for their opposition to his appointment and defending this ad narrated by Gregory Peck.

BORK HEARINGS SHOWED HOW DEMOCRACY WORKS; A Very Small Poll Tax:

To the Editor:

You say (''Who Torpedoed Judge Bork?'' editorial, Oct. 13) that the critical factor in the opposition to confirmation of Robert H. Bork as an associate justice of the Supreme Court was the merits as ''ventilated in fair, exhaustive, sometimes brilliant hearings.'' We agree and are proud of the role People for the American Way played, with others, in contributing information and ideas to the debate.

But you also say there were ''exaggerations'' in an ad narrated by Gregory Peck and produced by our group to educate the public about Judge Bork's record. We disagree.

At Robert Bork's confirmation hearing to be Solicitor General, he defended the poll tax struck down in Harper v. Virginia, saying, ''It was a very small tax, it was not discriminatory, and I doubt that it had much impact on the welfare of the nation one way or the other.'' In his 1987 confirmation hearing, he held firm to this view, stating, ''It was just a $1.50 poll tax'' (committee print draft, page 129).

Judge Bork's statements on literacy tests are also a defense of their use -he characterized the decisions upholding Congressional authority to ban literacy tests as ''very bad, indeed pernicious, constitutional law.'' Under his theory, the courts and Congress would be prevented from taking any action, and the only remedy would be through constitutional amendment. While Judge Bork recognizes that the Fourth Amendment protects against unreasonable searches and seizures, one form of a right of privacy, at his confirmation hearing he reiterated his long-held view opposing an unenumerated right, ''I do not have available a constitutional theory which would support a general defined right'' of privacy (print draft, page 266).

Judge Bork was not running for the legislature; he sought a lifetime seat on our nation's court of last resort. We have no reason to believe, and we did not suggest, that as a legislator he would vote to enact a poll tax. Judge Bork's statements clearly indicate, however, that as a judge, he would defend a state legislature's ability to enact a poll tax. It is on his judicial philosophy, not his personal preferences, that his nomination must be judged. JOHN H. BUCHANAN ARTHUR J. KROPP Washington, Oct. 13, 1987 The writers are, respectively, chairman and executive director of People for the American Way.

Shrum did a nice job of making those points during the segment. Full transcript via MSNBC below the fold.

MR. GREGORY: The, the issue also of Bork, which Mike brought up, Peggy, if you go back to those hearings, he was known for being an outspoken judge.

MS. NOONAN: Yeah.

MR. GREGORY: He came into those hearings and he said what he thought. Shows you what good that did him in terms of what the opposition was against him. But here, with Kagan, you do have particularly liberals who want to explore her views about executive power and whether she is closer to the Bush administration when it comes to how--what, what power the executive has over detainees, over who gets, you know, their day in court, etc.

MS. NOONAN: Mm-hmm. Look, I think that since the Bork hearings it has been very hard for young lawyers who want to go forward in the judiciary to realize anything but this. If you are colorful, if you are interesting, if you are forthcoming and share your thoughts and philosophy and views on the way up, when you get to your confirmation hearing for the court, they will put a noose around your head, hanging you with every interesting thing you've ever said. I, I happen to think the Senate Judiciary Committee has not done a good job of vetting and bringing out the thoughts of, of Supreme Court nominees for a long time. I think they should change. Let those nominees be forthcoming, let them speak. And I think this whole sense we've got that you can't say anything interesting on the way up ought to just go away. Oliver Wendell Holmes today would not be allowed on the U.S. Supreme Court because he said such fabulous, interesting things.

MR. SHRUM: He wouldn't have, he wouldn't have to have a confirmation hearing, Peggy, because they didn't have them in those days.

MS. NOONAN: Well, fair enough. Fair enough. But we do have them now, and they ought to summon thought, and they ought to respect individuality and taking a different view, and creativity, frankly.

MR. SHRUM: Well, look, here's what should...

MS. NOONAN: Those things shouldn't kill you.

MR. SHRUM: Go ahead.

MR. ALTER: I was just going to say that Barack Obama, during the Sotomayor preparations, he actually said in the Oval Office, "I would not be confirmed for the Supreme Court with the system that we have right now." That's how out of control the whole vetting process has gotten.

MS. NOONAN: Yeah.

MR. SHRUM: But we have to understand--here's what's going to happen--and this isn't going to change much, as Peggy might wish it to or I might wish it to--the senators are going to ask their questions. The nominee, as usual, is going to give carefully rehearsed answers. They're going to be as noncontroversial as possible. Then the process is going to move forward. I, I do quarrel with the rewriting of history to explain this. Robert Bork's real problem, in my view, was that he had condemned the Supreme Court decision outlawing the poll tax; he had condemned the one person, one vote decision; he had condemned the decision striking down restrictive housing covenants; and he had called the public accommodation section of the Civil Rights Bill in 1964...

MR. MURPHY: This is an illustration...

MS. NOONAN: Bob, yeah, this is like what happened.

MR. SHRUM: ...disgraceful. He was out of the mainstream.

MS. NOONAN: That is one way to put it.

MR. GREGORY: All right. My final point on this, because I don't want to talk politics.

MS. NOONAN: Yeah, yes.

MR. MURPHY: This is an illustration of what's gone wrong but also what's going to happen.

MR. SHRUM: Yeah.

MS. NOONAN: Yes. Senator, I disagree!

MR. MURPHY: Obama's going to get his judge, and Republicans are going to scorn the politics.

MR. SHRUM: But no one who...

MR. GREGORY: OK.

MR. SHRUM: ...no one who says the poll tax ought to be upheld is going to be confirmed, is my point.

MR. GREGORY: All right, let me, let me get in here.

MS. NOONAN: Sit him down and talk to him and summon his thoughts. Don't just make accusations...

MR. SHRUM: I, I agree.

MS. NOONAN: ...and say, "You're over."

MR. SHRUM: Well, these weren't accusations, these were facts.

MS. NOONAN: The accusations against Bork came within 45 minutes of the announcements of his nomination.

MR. SHRUM: Yes.

MR. GREGORY: All right. I'm going, I'm going to get in, I'm going to get in here because...

MR. SHRUM: And he confirmed them, actually.

MR. GREGORY: ...we're not going to relitigate Bork. We are going to talk about the politics of the moment.

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