Saturday, October 22, 2011

It's Ted Kennedy's fault

As John Cole points out, Joe Nocero (following his epic performance in snarking those who think fracking may not be a great thing for the environment), has officially become a villager in good standing.

The rejection of a Supreme Court nominee is unusual but not unheard of (see Clement Haynsworth Jr.). But rarely has a failed nominee had the pedigree — and intellectual firepower — of Bork. He had been a law professor at Yale, the solicitor general of the United States and, at the time Ronald Reagan tapped him for the court, a federal appeals court judge.

Moreover, Bork was a legal intellectual, a proponent of original intent and judicial restraint. The task of the judge, he once wrote, is “to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know.” He said that Roe v. Wade, which legalized abortion, was a “wholly unjustifiable judicial usurpation” of authority that belonged to the states, that the court’s recent rulings on affirmative action were problematic and that the First Amendment didn’t apply to pornography.

Whatever you think of these views, they cannot be fairly characterized as extreme; Ruth Bader Ginsburg, among many others, has questioned the rationale offered by the court to justify Roe v. Wade. Nor was Bork himself an extremist. He was a strongly opinionated, somewhat pugnacious, deeply conservative judge. (At 84 today, he hasn’t mellowed much either, to judge from an interview he recently gave Newsweek.)

I bring up Bork not only because Sunday is a convenient anniversary. His nomination battle is also a reminder that our poisoned politics is not just about Republicans behaving badly, as many Democrats and their liberal allies have convinced themselves. Democrats can be — and have been — every bit as obstructionist, mean-spirited and unfair.

I’ll take it one step further. The Bork fight, in some ways, was the beginning of the end of civil discourse in politics. For years afterward, conservatives seethed at the “systematic demonization” of Bork, recalls Clint Bolick, a longtime conservative legal activist. The Atlanta Journal-Constitution coined the angry verb “to bork,” which meant to destroy a nominee by whatever means necessary. When Republicans borked the Democratic House Speaker Jim Wright less than two years later, there wasn’t a trace of remorse, not after what the Democrats had done to Bork. The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one.


The character assassination began the day Bork was nominated, when Ted Kennedy gave a fiery speech describing “Robert Bork’s America” as a place “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters,” and so on. It continued until the day the nomination was voted down; one ad, for instance, claimed, absurdly, that Bork wanted to give “women workers the choice between sterilization and their job.”

Never mind that character assassination has been a convenient staple of Republican tactics for seven decades, Kennedy's speech was based on Bork's own history and writings.

This argument would seem to turn on how to interpret the phrase “Robert Bork’s America.” Nieporent seems to think that it means, in at least some cases, “actions that Bork would personally perform or implement.” I interpret it as “the consequences that would flow from Robert Bork being the median vote on the Supreme Court.” The first reading is transparently wrong, and we know this because of the obscure fact that Kennedy’s speech was delivered on the occasion of Robert Bork being nominated to the Supreme Court.

Once we understand this, everything Kennedy said is fair and based on Bork’s public writings and/or jurisprudence. Bork did argue (and not in obscurity: he helped to persuade the 1964 Republican presidential candidate to adopt this position) that the Civil Rights Act of 1964 was both unconstitutional and bad public policy (and, indeed, was based on a principle of “unsurpassed ugliness.”) He clearly favored the overruling of Roe v. Wade (and, as he revealed in a subsequent book, the criminalization of abortion as a policy matter), and it’s uncontroversial that under a criminalization regime many women who lack the connections to obtain safe gray market abortions will be compelled to obtain unsafe black market abortions. He explicitly advocated an extremely narrow conception of First Amendment rights limited to certain kinds of political speech. He advocated a narrow reading of Fourth Amendment rights and disdained any right to privacy altogether. And — like most contemporary conservatives — he believed that (at least for litigants he disfavored) the rules of standing should be made more stringent.

Kenendy’s speech was tough and uncharitable, but every claim in it was based on Bork’s public writings.

Indeed, if it all "started with Bork," it started when Reagan nominated him.

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