Skip to comments.Lessons From The Bork Debacle
Posted on 12/25/2012 9:23:35 AM PST by Kaslin
It's always best, I find, not to talk too rapturously about Ye Olde Days: days which, on careful inspection, yield evidence of problems aplenty. I won't assert, therefore, that no public figure ever received in earlier times a public evisceration comparable to that inflicted on the late Robert Bork, presidential nominee in 1987 to a seat on the U. S. Supreme Court.
I will make just two claims: 1) The political-journalistic assault on Judge Bork was indecent, slanderous, and hysterical -- a disgrace to ethics and standards all across the board; and 2) it ought to have warned us what a mess our national life was becoming.
Americans under 35 or so won't remember the scandal of the Bork hearings: the slimy attacks on a distinguished jurist, the distortions of his record, and most of all, the out-and-out lies spun by public figures unwilling to admit they knew better.
Largest of the liars -- I don't mean merely in pounds and ounces -- was Sen. Edward M. Kennedy, who, one hour after the nomination was announced, characterized "Robert Bork's America" as "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, school children could not be taught about evolution ..." -- blah, blah, blah.
The hue and cry had commenced. In Bork's obituary, The New York Times observed, "the fear that his confirmation would curtail settled rights, especially of blacks and women, created a national reaction. An array of groups focused on civil and women's rights, labor, consumer power and the environment began an extraordinary public campaign against him ..."
Without, of course, a shred of evidence to go on, apart from knowledge of Bork's conservative skepticism regarding the wholesale expansion of liberal claims. A justice unwilling to declare most, or better yet, all, liberal positions virtuous and constitutional couldn't be countenanced. Bork had to be declared, in Sen. Joe Biden's words, "out of the mainstream" -- a radical, an extremist. The Senate, with regular boosts of energy from the media, not to mention American Bar Association liberals, so declared him, and thus defeated his nomination. Sorry, Bob, nothing personal.
But what was this "extremism" business? Bork didn't propose the return of thumbscrews to criminal proceedings, or the establishment of a national religion. What then? Never one to hide his views, Bork had made well-known his general opposition to vindicating every interest group claim as an innate human right, thitherto hidden from view, ready at last to emerge, by judicial touch.
Supporters of Roe vs. Wade feared he would vote to overturn the decision. What if he'd demanded (as he might have) to be shown where the Constitution entitled a woman to abort her unborn child? Roe, which conferred that entitlement, was a judicial fable, spun from the conviction of seven justices that what wasn't precisely spelled out was nevertheless in there somewhere.
The court didn't need a human corrective to such sloppy thinking? It didn't need the jurisprudence of Robert Bork? Why, no, it appeared -- the court needed more sloppy thinking than ever, certainly not less. Or so the gang screaming hysterically at Bork could easily be understood as asserting.
I mentioned the warning that came to us by way of the Bork debacle. We understood in 1987, and understand better now, the efficacy of lies about designated opponents. Harder to understand during the '80s -- the sunny Reagan years -- but becoming steadily clearer is the vast power of an intellectual-political class prepared to bulldoze obstacles, human or constitutional, to get whatever it wants, devil take the hindmost.
The framers of the Constitution had hoped for better outcomes. Little notion they can have had concerning life in Teddy Kennedy's America, where recognized opinion leaders rarely shrink from destroying or humiliating those dim and dumb enough to hold views contrary to their own; where the end always justifies the means; where power is all, and all is about power.
His approach, which should be followed by all judges, especially federal judges, was to put his own personal values and biases (the basis for judicial activism) aside and faithfully apply the original understanding and intent of the law (in this case, the Constitution) as best as possible. That's the best anyone can do. It doesn't guarantee perfect results, but nothing is prefect and this faithful methodology is the truest and most integrated judicial approach there is to Constitutional law.
His example would almost certainly have been one against "judicial activism" either on the right or the left. What a pleasure it would have been to see how he would have applied the Constitution to a case either in writing for the majority, in concurrence, or in dissent.
I wish people like Bork, Reagan, and Milton Friedman would live forever, because our country and world need these wonderful men so desperately. Heaven's gain, our loss. http://pjmedia.com/rogerkimball/2012/12/19/robert-h-bork-1927-2012/
Swift boating should be defined as the exposing of a poltroon who inflates his biography.
This is often confused, quite deliberately by the mainstream media, with "borking" which should be defined as "attack viciously a candidate or appointee, especially by misrepresentation in the media. According to William Safire in The New York Times.
Our mission on FreeRepublic should be to "swift boat" the unworthy and to prevent the "borking" of the worthy.
We seem to have failed our mission. Robert Bork has gone to his grave and John F Kerry is about to ascend the office of Secretary of State. If one consults the Internet, especially Wikipedia, one is led to believe that the entire charge laid by the Swift Boat Veterans against John F Kerry for inflating his war record has been discredited and John Kerry's credibility has been restored. Indeed, we are led to believe that The Swift Boat Veterans stole the election away from John Kerry with their slanders. The term "swift boating" has become the preferred term of art to describe "borking."
It is not to be expected that very many Republicans senators will summon the ill grace to vote against a colleague. How soon they have forgotten the Bork hearings, the Thomas hearings and the John Tower hearings.
We will go on condoning the Borking of our own appointees and candidates and not only will we lose most of these these political battles, we will have lost the battle over vocabulary. I pray that I am not near any sharp objects the next time I hear a Republican senators say, "Obama won the election and the president is entitled to his choice of appointees."
These are just part of the crowd who decided they didn't need Judge Bork, and now as time has shown, their clear intention was to foster mass murders at public schools!
For those who were paying attention, we got a much more dire warning in 1957. Ayn Rand's Atlas Shrugged was both a warnng and a blueprint for what was to come.
Today, we are living in the America that Rand described: corrupt, bloated government; union thugs; anti-business and anti-waelthy class warfare; phony environmentalism. It's all there. All we are lacking is Galt's Gulch which we may see forming in another country with lower tax rates as the wealthy job creators abandon America for someplace that is a little more sane.
I didn't begin to understand Rand's vision until the late 70s or early 80s. But, like today, no one was listening.
Exactly right - the fact that intelligent people on this thread can have a discussion on the SCOTUS being "left Leaning" or "right leaning" without blanching tells it all.
“I don’t believe the pubbies and most conservatives have any idea of the depth of the evil they are up against.”
I think that is one of the biggest problems we face. So many fail to realize that this is another iteration of the battle between good and evil.
Lesson: Never underestimate the Left's willingness to do evil.
true that - and not evil light either but the real deal
Bork wasn’t good on 2nd Amendment.
I didn't know that. As I've said, what set Bork apart from the rest was not an error-free set of decisions or conclusions or even personal beliefs, although his judicial record is strong - SCOTUS did not reverse any of Bork's majority decisions on the D.C. Circuit Court. What brought him to the forefront in the judicial arena was his commitment to the faithful application of the original meaning and intent of the Constitution. This good-faith effort to preserve and accurately apply the Constitution is in the long run more important in furthering the integrity of the rule of law than support for a libertarian position for the wrong reasons (ex. extra-Constitutional reasons or neglect in seeking original textual understanding) or even an erroneous application after a good faith effort.
I don’t doubt he would have been better than the Justice eventually appointed. A small state legislator
He was not a libertarian, certainly, as proved in his role in the Saturday night massacre: He as acting Atty Gen fired the special prosecutor, an act that was later found to be illegal. The Atty Gen, and his deputy had both resigned rather than fire the special prosecutor. The subject of a special prosecutor investigation ordering the special prosecutor fired seems a problem to me.
He did bring some rationality to antitrust law. That by itself was a powerful achievement.
His judicial record was generally irreproachable.
Whatever he might have accomplished on the Court, Bork died just a few days ago. Think about what that would mean for future Court decisions, if Anthony Kennedy's seat were now available to Obama, to fill with some benthic Leftist Moonbat like Jerry "Moonbeam" Brown, or the evergreen and logrolling traducer, Prof. Lawrence Tribe of Harvard. Or how about Mario Cuomo? -- he's a Left darling. Or worse, his gun-grabbing spawn, Andrew? He's almost 30 years younger. The possibilities are legion. Nightmare: Imagine Obama trotting out his new nominee for the open seat -- the Goatfooted One, Der Sinkmeister himself, Slick Willie the Master Liar, Master Manipulator, Master Baiter. The Rapist.
Bork's confirmation would, completely unintentionally, have put us into a real pickle just about now.
The Left understands power, the (current) Right does not.
“Never do what the enemy wants, for this reason alone: that he desires it” -Bonaparte.