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July 30, 2014

Diary of December 27, 2012

In the season of good will toward men, the death of Robert Bork has proved to be the occasion for at least one left-leaning writer to look again, and with a more charitable gaze, on the first recorded incident of "Borking" in 1987. That was when, as no one on the right is ever likely to forget, Judge Bork, nominated to the Supreme Court by President Ronald Reagan, was denied confirmation at least partly on account of a brutally graceless campaign of personal abuse and character assassination, led by the late Ted Kennedy — still a hero to as many on the left as Bork is to those on the other side. "Robert Bork’s America," said Kennedy, "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, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans."

Jeffrey Rosen, who is now the legal affairs editor of The New Republic and was then an intern in the office of Senator Joe Biden, chairman of the Senate Judiciary Committee at the time, cheered as loudly as anyone when Bork’s nomination went down to defeat. Now he confesses  that, even at the time, he had doubts that Bork had been treated fairly:

Bork’s record was distorted beyond recognition, and his name was transformed from a noun into a verb. The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking. And it had obvious costs for Bork. . .What will the future bring? More opaque, un-Borkable nominees, more polarization, more unfilled judicial vacancies (unless the filibuster gets exploded, leaving even more partisanship in its wake). And less of the values that Bork represented at Yale: bipartisan debate, intellectual experimentation, and a willingness to cross ideological lines.

But if The New Republic at Christmas showed a rare example of the same willingness, The New York Times remained — as one might almost expect it to do — adamantly opposed to intellectual adventurousness and a bastion of "ideological purity." There, David Greenberg, a professor not just of history but also of journalism and media studies at Rutgers, wrote "‘Borking’ Before Bork," which took the long view of American history to deny that any special injury had been done to one of America’s great jurists by his treatment at his confirmation hearings. Supreme Court nominees had been rejected many times before, he pointed out, before going through the list, from George Washington’s nominee as chief justice, John Rutledge, in 1795, to the rejection in 1969-1970 of Richard Nixon’s first two nominees, Clement F. Haynsworth and G. Harrold Carswell, to the seat vacated by Abe Fortas after his own nomination as chief justice by Lyndon Johnson went down to defeat. "The Democratic campaign against Bork in 1987, then, wasn’t anything new," writes Mr Greenberg; "it merely resumed a dynamic that had been temporarily obscured — one as old as the republic and a perfectly fair, if often cynical, deployment of the Senate’s power to advise and consent."

Unaccountably, Mr Greenberg doesn’t mention the vicious personal nature of the attack on the character and basic decency of Judge Bork, nor does he find a precedent for anything like it before him. The nearest parallel, which was Senator Strom Thurmond’s thinly-veiled racial attack on Thurgood Marshall’s legal knowledge, is hardly comparable, and nor did it result in Marshall’s failure to be confirmed. Mr Greenberg’s characterization of the motivation of Bork’s enemies as merely "ideological" is therefore disingenuous and an example of the very thing whose existence he would deny, namely a lack of grace or a sense of fairness towards the other side, as demonstrated by a refusal to admit to any shortcomings in one’s own. But then another of the ill-consequences flowing from Judge Bork’s rejection a quarter century ago has been the spread of the political "polarization," mentioned by Mr Rosen, from workaday politics to the media and to much of the scholarly world as well.



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