”As conservatives mean it, 'to Bork' is 'to attack a person's reputation and views unfairly,' as Bork himself stated in a July 1 interview on CNN. The obvious implication of Bork having been 'Borked' is that he was wrongly denied a seat on the high court.” – Media Matters for America, “Top Supreme Court myths, falsehoods and distortions,” July 19, 2005
"It says something about Bork's constitutional vision that accurately restating his public views has become synonymous with the dirtiest of dirty tricks." -- Scott Lemieux, "Robert Bork, Martyr of Incivility?", December 2012
Part 5 in the series “The Structure of Lies in Conservative Jurisprudence”
Our last of three examples of successfully lying in judicial confirmation involves Chief Justice Roberts. But before considering his example, we need to look at something else, which is nonetheless intimately related: The defeated nomination of Robert Bork, in which the system actually worked, and conservatives responded not only with hyperbolic outrage, but also by intensifying their efforts to ensure that the confirmation process would never work properly again. Chief among their responses was the creation of the myth of “borking”, as indicated in the quote above. It was a typical example of a conservative victimhood narrative, “it all started when he hit me back.” As political scientist Scott Lemieux summarized, “Subsequent to his failed nomination, Bork took on the mantle of a conservative martyr, someone whose allegedly unfair treatment at the hand of Democrats led to a new area of political incivility.”
There is a slight element of truth in the claim: prior to Bork, Democrats had been far too passive in responding to the right's organized juidicial branch assault on civil rights, civil liberties, and a broad range of other hard-fought gains which came under sustained organized assault during the Reagan Administration,. If the result was, indeed, “a new area of political incivility”, the real problem therein has been that the incivility has often waned, even as the attacks on the rights of the relatively powerless have continued without letup. Following the sentence above, Lemieux continued:
Predictably, in their remembrances a number of conservative writers—including Roger Kimball, Ann Althouse, and John Podhoretz—have focused on the tough speech that Senator Ted Kennedy gave after Bork's nomination was announced. If you look carefully at all the outrage, however, you'll notice a funny thing: None of them decries a single claim made by Kennedy as inaccurate. There's a good reason for that: Kennedy's opposition was based on Bork's public record. Bork did publicly denounce the Civil Rights Act as not merely unconstitutional but based on a principle of "unsurpassed ugliness." He did advocate for an extremely cramped interpretation of most civil liberties. He did believe that the Constitution provided no protection for a right to privacy. Republicans might have preferred that Kennedy not outline the consequences of these beliefs, but there's no reason for Democrats to abjure accurate statements merely because they're put in stark enough terms to be politically effective.
Ay, there's the rub: the problem with Ted Kennedy's attack on Robert Bork was two-fold: First, that it was accurate, and second, that it was effective. The American people—not just liberals—do not want, accept, or believe in the world as seen by the conservative legal movement. Therefore, the only way to bring that world into being is through lies, fraud, and deception. Unflinching truth is their greatest enemy.
The salience of the “Borking” myth emerged as highly significant in 2005, when Chief Justice Roberts and Associate Justice Alito were both nominated by Bush. At the beginning of this process, a few weeks after Sandra Day O'Conner had announced her retirement, and just before Bush was to announce his nomination to replace her, Media Matters explained that “conservatives have formulated or resurrected numerous false and misleading claims about the high court, which some in the media have all too willingly repeated without challenge.” The very first example was, essentially, the myth of “Borking”:
1) Robert Bork was "smeared" when he was nominated for the Supreme Court
Conservatives have attempted to undermine potential opposition to a Bush nominee by resurrecting Robert H. Bork's failed nomination to the Supreme Court in 1987. In asserting that Democrats "smeared" Bork and vowing to save any Bush nominee from a similar fate, they attempt to paint any opposition to a Bush nominee -- or even efforts to scrutinize his or her record -- as vicious, unfair, and outside the scope of the Senate's advice and consent authority.
The reality of Bork's failed nomination is quite different. After the Senate rejected Bork's nomination, Reagan White House officials and numerous senators -- Republicans as well as Democrats -- denounced his judicial record and his performance at the confirmation hearings.
For example, Sen. John Warner (R-VA), who voted against Bork, said: "I searched the record. I looked at this distinguished jurist, and I cannot find in him the record of compassion, of sensitivity and understanding of the pleas of the people to enable him to sit on the highest Court of the land." Similarly, White House officials pinned Bork's rejection on his controversial writings and the fact that the Senate largely found him unpalatable.
Sen. Arlen Specter (R-PA), now chairman of the Senate Judiciary Committee, continues to defend his opposition to the Bork nomination.
The second misleading claim that Media Matters identified was that ”2) Democrats will oppose any nominee President Bush picks”, which obviously draws on and extends the “Borking” myth, while the third point brought them directly back to talking about “Borking” again:
3) In questioning nominees, Democrats will treat them with disrespect and hostility
The mainstream media have also echoed Republican rhetoric that any action taken by Senate Democrats during the confirmation process short of complete compliance would constitute obstructionism. For example,Washington Post staff writer Mike Allen wrote on July 3 that Senate Majority Leader Bill Frist's (R-TN) appeal for "dignity and respect" in the confirmation hearings "does not appear likely." Baker cited Schumer's pledge to "thoroughly vet" the as-yet-unnamed nominee as evidence for this pessimistic prediction, even though Schumer has specifically stated that the questioning "be respectful, be dignified, for sure."
The re-emergence of the term "Borking," which The Wall Street Journal editorial page coined in reference to the Senate's rejection of the Bork nomination, reinforces the right-wing line that opposition to any Bush nominee for any reason is unwarranted and unfair. As conservatives mean it, "to Bork" is "to attack a person's reputation and views unfairly," as Bork himself stated in a July 1 interview on CNN. The obvious implication of Bork having been "Borked" is that he was wrongly denied a seat on the high court.
Many in the media have repeated the term uncritically, with no explanation of the phrase's right-wing origins and seemingly no regard for how its unqualified use reveals a heavy conservative bias.
As one example of how conservatives at the time had a much more realistic view, Media Matters elsewhere reports:
On the July 5 broadcast of NBC's Today, Ken Duberstein, former White House chief of staff under President Reagan, blamed the failed nomination on Bork's controversial judicial record and his conduct at the confirmation hearings:
KATIE COURIC (host): But what was it -- what happened during the Bork nomination process? Was it that he had too significant or too clear a paper trail to be, you know, accepted by his opponents?
DUBERSTEIN: Well, I think certainly, that had an awful lot to do with it. But also, he became his own worst witness during his confirmation hearing. And the caricature the opposition had painted of him, everybody saw in living color on TV during his hearings.
Another such example is the following:
According to an October 24, 1987, Washington Post article, White House officials pinned Bork's rejection on his controversial writings and the fact that the Senate largely found him unpalatable:
White House officials emphatically disagree with this assessment, insisting that from Reagan on down the administration made a maximum effort. They acknowledge a serious miscalculation at the outset, when they overestimated the likely importance of Bork's role in the firing of Watergate special prosecutor Archibald Cox and underestimated the importance of Bork's controversial writings as a law professor.
Most important, Bork, who met personally with almost half the members of the Senate, did not persuade the key undecided votes, White House officials said. "The dogs just didn't like the food," said one Bork strategist.
In short, there were plenty of reasons why the Bork nomination failed, most of them boiling down to Bork himself, as Lemieux explained in the passage I quoted near the beginning of this piece. It wasn't that Senators were just being mean to Bork. Bork himself had a long history of being mean to others and overly enamoured with himself, and it came back and bit him—as, indeed, it should have. Mercy and compassion are part of what we look for in our judges. Vanity and narcissism are not. Justice may come first, but justice without mercy and compassion is all too often no justice at all. Bork's rejection was well justified by his own shortcomings.
But it's not just that the reasons for Bork's r, ejection are misrepresented by the myth of “Borking”. It also creates a false history, in which what happened to Bork had no precedent, but simply came as a bolt out of the blue. This is patently false. For one thing, as Lemieux noted elsewhere at Lawyers, Guns and Money late last year, Edward Kennedy launched a very similar attack on William Rehnquist after his nomination to be Chief Justice the year before Bork was nominated:
[H]ere was Ted Kennedy’s opening statement at the Judiciary Committeehearings on William Rehnquist’s appointment as Chief Justice:
Mainstream or too extreme? That is the question. By his own record of massive isolated dissent, Justice Rehnquist answers that question. He is too extreme on race, too extreme on women’s rights, too extreme on freedom of speech, too extreme on separation of church and state, too extreme to be Chief Justice.
His appalling record on race is sufficient by itself to deny his confirmation. When he came to the Supreme Court, he had already offered a controversial memoranda in 1952 supporting school segregation; he had opposed public accommodation legislation in 1964; he had opposed remedies to end school segregation in 1967; he had led the so-called ballot security program in the sixties that was a euphemism for intimidation of black and Hispanic voters. On many of these issues, it now appears that Mr. Rehnquist was less than candid with the committee at his confirmation hearing in 1971.
As a member of the Supreme Court, Justice Rehnquist has been quick to seize on the slightest pretext to justify the denial of claims for racial justice. His dissent in the Bob Jones University case supported tax credits for segregated schools. In Batson v. Kentucky, his dissent supported the rights of a prosecutor to prevent blacks and 16 minorities from serving on a jury. In the Keyes case, his dissent supported the view that segregation in one part of a school district does not justify a presumption of segregation throughout the district.
After noting the above, Lemieux added:
For those unfamiliar with the 1952 incident, Rehnquist wrote a memo while clerking for Robert Jackson arguing that “Plessy v. Ferguson was right and should be reaffirmed.” He then told ridiculous lies about it at his 1971 confirmation hearing as associate justice.
As you can, see there was nothing “unprecedented” about Kennedy’s speech on Bork. Kennedy’s alleged offense — i.e. accurately characterizing the views of a Republican nominee in a way that is politically unfavorable to the nominee— was something he had done a year earlier with little fanfare. And, of course, Kennedy’s substantive attacks can’t really hold a candle to, say, Strom Thurmond’s performance (up to and including porn screenings) at the Fortas hearings.
Kennedy’s similar statements about Rehnquist got little attention simply because they weren’t politically relevant. With Republican control of the Senate there was no real prospect of defeating Rehnquist’s nomination,
Nor was Kennedy's criticism of Rehnquist the beginning of ideologically contentious questioning in the modern era. That goes back at least to the confirmation hearings for Justice Harlan in 1955, the year after Brown v. Board of Education, when segregationists grilled Harlan intensively. What did change under Reagan was that an entire industry was being put together to systematically move the entire judiciary sharply to the right. Democrats largely failed to respond in any organized fashion. Only the most egregious of lower court nominees got anything close to the sort of scrutiny they warranted. One of the few who was so scrutinized—and rejected—was Jeff Sessions, a man with a reputation for going after blacks for supposed voting irregularities. Naturally, the good white people of Alabama elected him to the Senate to salve his wounds, where he has been making a public ass of himself ever since. At least he is a highly visible reminder of the sort of “intellect” the right wants rubber-stamped with unlimited lifetime power. That is the cold hard truth behind the myth of “Borking”.
Next up: John Roberts' smooth post-Bork confirmation lies.