Look At What Bork Hath Wrought
I am pausing to note the 20th anniversary this week of Robert Bork’s rejection as a Supreme Court justice because I’ve just finished the best current-affairs book to come along since forever – The Nine, Jeffrey Toobin’s insightful story of the “secret world” of The Supremes.
Bork, of course, is best known as the origin of the pejorative verb to bork, which is defined as viciously attacking a candidate or appointee through misrepresentation in the media.
The fight over President Reagan’s nominee was indeed especially nasty coming as it did after the Democrats had regained control of the Senate in the 1986 election and amidst the low point of the Reagan era, the Iran-Contra Affair.
Democrats led by Senator Teddy Kennedy (with an assist by actor Gregory Peck, who did a Bork-bashing TV commercial) branded the legal scholar as an extremist who would roll back civil and women’s rights.
Newspapers had a field day delving into every nook and cranny of Bork’s life, including the videos he rented, such as A Day at the Races, Ruthless People and The Man Who Knew Too Much. But no porno movies, which we were to learn that future Justice Clarence Thomas had a fondness for some four years later, although not from the nominee himself, who was as silent during his stormy confirmation hearings as Bork had been verbose.
What is not as well remembered two decades after the Bork nomination crashed and burned is that, hyperbole aside, he was indeed the extremist that his opponents painted him to be.
But, as Toobin writes in The Nine, Bork’s nomination failed largely because his backers in the Reagan White House, led by Attorney General Edwin Meese, hadn’t done their homework:
“More than anything, the fight over Bork’s nomination illustrated that Meese and his allies had done a better job of persuading themselves of the new conservative agenda than they had of convincing the country at large. In truth, many of the Warren Court precedents – the ones Bork had attacked for so long – remained popular with the public, and consequently, in the Senate.”
I doubt that many people remember that Reagan then nominated Anthony M. Kennedy, a comparatively-moderate judge from his home state of California who was confirmed quickly and without anyone knowing his video-rental preferences. Nor that it was Kennedy who banded together with Justices David Souter and Sandra Day O’Connor in 1992 to help defeat the last head-on effort to overturn Roe v. Wade, which was led by Chief Justice William Rehnquist.
What is crystal-clear is that conservatives have gotten much better at imposing their agenda on the high court, helped in part by having the wind at their back in the form of a voting public that has tacked from left of center in the last 15 years, although now it shows every sign of tacking back.
Alas, too late.
Thomas, Antonin Scalia, Samuel Alito and John Roberts, nominees of Bush père and his son, are all conservatives except when it comes to their judicial activism, the very outrage that conservatives decried when Bill Clinton was president. And with O’Connor, the great equalizer, retired, these four white men (yes, Thomas, too) will be imposing their agenda on all of us for many years to come.
As Toobin notes in the final pages of The Nine, only the outcomes of presidential elections will determine the future of the Supreme Court:
“Presidents pick justices to extend their legacies; by this standard, George W. Bush chose wisely. The days when justices surprised the presidents who appointed them are over.
” . . . This is as it should be . . .the Supreme Court operates at a higher plane than the mortals who toil on the ground. But the Court is a product of a democracy and represents, with sometimes chilling precision, the best and worst of the people. We can expect nothing more, and nothing less, than the Court we deserve.”
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27 Responses to “Look At What Bork Hath Wrought”
“Thomas, Antonin Scalia, Samuel Alito and John Roberts, nominees of Bush père and his son, are all conservatives except when it comes to their judicial activism,”
It would be nice to see some quantitative evidence on this. There was a recent publication by Miles and Sunstein that was criticized from the right here but I see no corresponding study from the right.
So true.
Also true. Elections have consequences.
But when you say,”these four white men (yes, Thomas, too)”–that part isn’t true.
I might suggest that one person’s “judicial activist” is another persons “reasoned jurist.”
The whole “judicial activism” is a canard in my view that’s used as a blanket criticism for when a judge does not decide a case the way one would like.
What’s sad is that both sides of the political spectrum now see the courts as the means to enact policies they could not otherwise implement. Abortion, of course, is the classic case. With neither side able to get a definitive victory through the legislative process, both sides turn to the courts and fight the battle during the confirmation process with a variety of thinly disguised litmus tests. So it is with many other issues.
With the rise in executive power, the battle over the courts just indicates to me how weak an institution our legislative branch has become. Is it any wonder they are less popular than even Bush? Is it any wonder they have been completely unable to address the major issues of the day?
Entropy:
You are dead-on correct about “judicial activism” vs. “reasoned jurist.”
I always thought that Bork’s participation in the Saturday Night Massacre during his time in the Nixon administration was enough to disqualify him from the Supreme Court.
Shaun, I’ll give you one thing: you are consistently against all things Republican. I agree, though, that Judge Bork was an extremist. But Justice Thomas? He has gotten a bad rap simply because he took a different political path than the majority of African-Americans. If this earns him the title “white,” then I guess that’s just more of the same reasoning that calls former President Clinton “black.” Those labels only serve to promote a subtle racism. After all, was it not MLK who said that we must judge and be judged not by the color of our skin, but by the “content of our character?” You may not like Judge Thomas’ character as evidenced by his rulings, but leave his skin color out of it. It’s irrelevant.
[...] and calling a black man white because he’s a conservative is racist. The rest of the post is quite good, but that one line [...]
Clarence Thomas is an extremist. You don’t have to react to his skin color in any way to recognize that. In the legal world only an extremist has no respect for stare decisis and several sources have reported on Thomas’ willingness to ignore it in order to overturn any opinion that doesn’t fit into his hyper-conservative agenda.
Republicrat:
You give Thomas an unjustified free pass.
Despite overcoming enormous odds to get through college and law school, there is nothing in the character of Thomas nor in his tenure on the court that is admirable.
Dr. King may have objected to my characterization of Thomas, but he would would have been appalled at the man.
“With the rise in executive power, the battle over the courts just indicates to me how weak an institution our legislative branch has become. Is it any wonder they are less popular than even Bush? Is it any wonder they have been completely unable to address the major issues of the day?” – Entropy
I think you pretty well nailed it there. It’s getting hard to decide which branch of govt. is more depressing these days. The standards for performance in any of them have dropped so incredibly low.
Bork was an excellent choice for the court if anyone had taken the time to debate him on the merits of his writings. No one did. He ran rings around Biden et. al. The fact remains that there is no right to privacy in the constitution.
I find i amunsing that those in the liberal camp are willing to accept supreme court decisions that reflect a “living breathing” constitution when it applies to their positions on social issues but would recoil in horror if on abortion, Thomas and Scalia said that changing scientific knowledge requires the court to curtail abortions to extremely early in the pregnancy.
May I remind everyone it was nine white men who decided Roe v Wade? A woman’s voice was no heard on the court.
dwolf:
You rush to judgment on abortion.
As I note above, it was a woman who rallied a majority of justices to strike down the last head-on attempt to strike down Roe v. Wade.
In fact, Toobin goes so far as to say that calling that era the Rehnquist Court is something of a misnomer, and as solid a chief justice as he was (and one whom on balance I respected), a more accurate label would be the O’Connor Court.
This brings me back to my criticism of Thomas.
O’Connor showed extraordinary growth as a jurist during her 25 years on the court although there were many instances when I did not agree with her and the fellow justices with whom she sided. Thomas, on the other hand, arrived at the Court with deeply rigid and dogmatic views of the Constitution and law and, if anything, those views have become even more deeply entrenched.
In short, Thomas has not grown as a jurist or an intellect. He is a man of incredible shallowness who demeans the court and the people he professes to serve — and that means all people and all people of color — in his opinions and the extraordinary number of harshly bitter public statements he makes, as is evidenced by his recent autobio.
After Entropy’s comment, to which I agree, the following made me laugh (with apologies to the author):
“he fact remains that there is no right to privacy in the constitution.”
The only fact remaining is actually that there are two major, with other minor, Constitutional philosophies and the ‘facts’ in the Constituion depend on which philosophy guides the reading of the text.
I have chosen a side in the philosophy competition, but I can still acknowledge that others may see it defferently.
That’s why extremists on either side are so dangerous. If they get the upper hand, the law of the land takes violent swings from one direction to the other, ensuring instablilty and producing mistrust.
That’s why pragmatists like O’Connor played such a vital role. She remembered to feflect on how a ruling would affect the people who will be impacted. The new jusdges on the SC lack that talent and that wisdom.
That’s why the next election will also have consequences. .
domajot:
You are more correct about O’Connor than you may realize.
In another thread at my own blog, I noted that I once hugely admired William O. Douglas — the longest-serving justice in SCOTUS history — but reviled the man by the time he finally retired not a day too soon.
While I never disliked O’Connor, my respect for her grew and grew in large part because of the pragatism that she embraced, as opposed to the Thomases, Scalias and Douglases.
I don’t want to overstate this, but I believe that the court is at its best when it more or less reflects the views of the American public. O’Connor had an uncanny knack of doing just that.
Davebo- thanls for mentioning the Massacre- if that didn’t prove Bork was a soulless lapdog, nothing he said at the hearings could.
Cosmoetica,
I’m old enough to remember those confirmation hearings and as I watched was screaming at the TV.
Somebody, just mention the massacre and we can end this entire farce!
They didn’t listen though.
I never understood why. It was, to use Tenet’s phrasing, a slam dunk.
And just to show some fairness, I also watched the travesty of the Thomas confirmation. I don’t like Clarence Thomas, I don’t agree with him on most issues. But I could find no reason he shouldn’t have been confirmed. Sure he had conservative views, but so did the president who nominated him.
I’m amazed at times at the thought process politicians must go through when deciding what fights to pick.
Davebo:
To smooth off the rough edges on my view of Thomas a bit, I too agree that the hearings were a travesty and he indeed should have been confirmed, but this is because I believe a president should be given substantial leeway in selecting justices.
That so noted, I won’t budget on my view that Thomas is a dangerous lightweight.
Both Thomas and Hill were jokes.
I think there should be a rudimentary grasp of basic law and human nature that is concomitant w an appointment to ANY judgeship.
And this comes from an es-public employee who worked in a courthouse.
People do NOT believe some of the things I tell them about the way even lower courts work- the bias (apolitical), unprofessionalism, and plain old wackiness are enough to make anyone roll their eyes.
Bork was subjected to scummy, vicious attacks by people often hysterical or psychotic in their defense of judicial activism, which is a fact, not a canard.
Bork was an apparatchik w little grasp of the Constitution, much less the fact that the Framers, in their Original Intent, designed the document for maximum latitude because they knew future generations would have and understand things beyond them.
This common sense has been lost in the interim by people who claim Strict Constructionism while oblivious of the document’s purpose and provenance.
Aside from his lack of ethics and intellectual limits, Bork was just a miserable bastard (aka scummy and vicious)- see the above mention of the Saturday Night Massacre by Davebo.
[...] post by Shaun Mullen This was written by . Posted on Thursday, October 25, 2007, at 4:59 am. Filed under [...]
I agree with some parts and disagree with other parts of every comment so far about Thomas.
From everything I’ve read (his book, plus news articles) and seen (2 of his book signning events on C-Span, plus other interviews)., I’ve come to believe the man is in the grip of his emotions and personal exoeruences to a degree way beyond what is normally acceptable, His point of reference is himself to an alarming degree., but the Constitution should not be read as being about him.
I also don’t like the dismissive way Hill is referred to.
I take her corroborating witnesses seriously. I take them more seiously now than I did then. His self-absorbed personality is exactly the kind who could be hurting someone without acknowledging it, because it’s always about, and exclusively about, what it means to him and how he’s feeling.
Okay. A little pop psychology here.
Or, it could be insight.
[pruned for mercy's sake]
*sigh* Bork explained, accurately, what this really means and what it does not mean (it is not license to substitute judges’ whims and wishes). The Framers of course knew the document could and would be changed, and included an amendment process (and a convention process) for this purpose; preceding cases may be a basis for making future rulings. In no way did the Framers intend for the Constitution to be construed to men whatever someone wants it to mean — obviously.
But then, too few here have been willing (and may well be unable; who knows?) to read what another user mentioned in a different context:
What a shame. Shaun needs someone to bash after Bush is out of office and Thomas isn’t as tempting a target as Bork would have been.
You mean the merits of what he had written then or the clarifications he has since written where he extols the virtues of censorship?
Censorship? (Ah, yes, community standards and other standards of conduct, which are particularly outrageous to children who want to do whatever they want.)
Or the slip-and-fall lawsuit (later-amended version) he filed against the Yale Club?
The answer is, the former, the writings about law, the issue here — as opposed to his “curmudgeon” elderly ways now (or his lawsuit).
‘*sigh* Bork explained, accurately, what this really means and what it does not mean (it is not license to substitute judges’ whims and wishes).’
Sigh squared.
Actually he did not, for he lacked a grasp of the very broadness of the terms, as amply demonstrated in his Neolithic opinions.
Not only was there the amendment process, but words were carefully chosen down to the last preposition.
Ex- wiretapping was not in the Framers’ minds because telephones and electronic devices were not even dreamt possible. Yet, sans an amendment, it was figured out when and how privacy could be invaded, and when and how not.
That’s in the design of the words, as rightly interpreted by ‘activist judges.’
Try again, DLS.