We learned this morning that Robert H. Bork died. But the era that he ushered in lives on.
It’s sad to remember a man for his most notable failure instead of his accomplishments. Somewhere, Bill Buckner just nodded in agreement. Bork was a U.S. Solicitor General, an accomplished scholar, and of course, a rejected nominee for the Supreme Court.
Bork was an originalist, a crazy, rabid conservative who hated the Warren Court and saw no constitutional problem with forcing me to drink from a separate water fountain — so long as my water fountain was just as good as the white one. For the kids out there, let me tell you that while crazy originalists have come to dominate conservative legal thought, back in 1987, Bork’s views were pretty controversial.
As Solicitor General under Richard Nixon, Bork participated in the “Saturday Night Massacre” (which didn’t sound like such hyperbole back in a time before mass shootings were a regular thing).
During the confirmation process, Bork was candid about his views and opinions. Democrats erected a wall of opposition against him. His nomination was defeated 58 – 42.
Defeating the Bork nomination was probably the worst thing that has happened to the Supreme Court in living memory….
Yeah, I said it. Bork probably should have been a Supreme Court justice. Don’t get me wrong, he would have been a terrible justice. An evil one. A man who would have dedicated his tenure to retarding social progress in this country. America is better because Bork never sat on the Supreme Court.
But the Court, as an institution, is worse. The country learned the wrong lesson from the Bork confirmation hearings. Bork’s rejection should have been a signal that presidents should nominate judicial centrists, not Scalia-like ideologues who long for the good old days when the Constitution protected each state’s right to trample on their women and minorities. After Bork, Reagan nominated Anthony Kennedy, who was confirmed unanimously. You don’t get much more centrist than Kennedy (actually, you do, her name is Sandra Day O’Connor). One might have hoped that the Bork fight was a weird, ugly, nomination anomaly.
Then Thurgood Marshall died, Bush 1 sent up the most conservative whackjob he could find, and thought nobody would notice because he was black. It’s amazing how pubic hair in a soft drink will ruin a party.
And now here we are. Some nominations are contested, some eventually garner broad support. Some are “borked” before they even get started. But the threat of having a huge Senate fight over the nominee’s politics instead of his or her qualifications has changed the fundamental nature of how we nominate and confirm justices to the Court. And not in a good way. We now live in a world where:
- The nominee can’t have said or done anything politically controversial ever, even if we’re talking about a paper he or she wrote in law school.
- The nominee can’t say anything of any value whatsoever during the confirmation hearings.
- The other party will spend a great deal of time denigrating the nominee, so that even when they’re eventually confirmed at least half the country hates them.
- Actual questions about judicial qualifications are ignored while we scream “WHAT DO YOU THINK ABOUT ABORTION?” 1800 times.
- And the Court has lurched pretty far to the right anyway.
That last point is especially grating. Would Bork have shifted the balance of the Court to the right had he been confirmed instead of Kennedy? Absolutely. It would have been God-awful. But we’ve manged to get a super conservative Court… only this way the justices had to hide their positions before confirmation and pretend they were something approaching moderate.
In just the last four years, we’ve learned that essentially the federal government can’t regulate guns, the federal government can’t regulate campaign finance, and that the nation’s health care system is not an issue of interstate commerce. We’re about to learn that admitting a student because his grandaddy went to the school in the 1950s is okay, but even considering the race of a person whose grandaddy was barred from going to school in the 1950s is the worst thing ever. And God knows what nine (allegedly) straight people are going to say about the fundamental rights of gays and lesbians.
Conservatives won. In a rout. It’s not even close. Bork won. All that was accomplished by “defeating” his nomination was forcing all the little Borks out there to hide their true colors until they could come into their own with a lifetime appointment. How is that better? Why is it better to make a man sit there and say, “I just call balls and strikes,” when what he really means is, “The federal government is a ball I enjoy striking.”
Bork was at least candid about what he thought. It allowed us to talk about it, it allowed us to disagree and act appropriately. It allowed us to debate.
Now, there is no debate. There is no discussion. Now it’s all litmus tests while the nominee smiles and nods and tries to tell people what they want to hear until they get a lifetime appointment and nobody can stop them. We’re conducting sham interviews for a person that we won’t be able to fire. It’s a joke.
If Bork had been on the Court, today there would be a celebration on the left. And in a couple of weeks, Goodwin Liu would be nominated to replace him. And we’d at least be fighting over something important.
Robert H. Bork, Conservative Jurist, Dies at 85 [New York Times]