Wednesday, October 26, 2011

Remembering Bork’s Failed Nomination

Last Sunday was the 24th anniversary of the day when Robert Bork’s nomination was voted down by the Senate. Much has been written about this moment in history and its effects on the confirmation process by very thoughtful people. The debate belies easy answers. Not so for Joe Nocera. 

In a short piece, Nocera sought to put the debate to rest. Where did the confirmation ugliness that we presently see begin? To Nocera, it began with the relentless attacks by Democratic Senators and interest groups on Judge Bork. As a result, “[t]he next time a liberal asks why Republicans are so intransigent, you might suggest that the answer lies in the mirror.” 

I’ll say this: the piece piqued my interest. 

Unsurprisingly, Nocera’s defense falls far short. This piece reads more like a partisan diatribe by a Bork family friend than a column intending its readers to consider a new perspective. It makes me wonder what the point of the piece even is. 

Begin with the hyperbole. According to Nocera, Bork was a candidate with great “pedigree” and “intellectual firepower,” “a legal intellectual” whose views “cannot be fairly characterized as extreme.” Bork was not “himself an extremist.” Rather, he was “a strongly opinionated, somewhat pugnacious, deeply conservative judge.” Put all these terrific adjectives and accolades together and the end result must be smooth sailing through the confirmation process. If only life were so simple. 

Here’s the thing: when Nocera points to Bork’s many attributes, he begs a much larger and important question. That is, what is the role of the Senate during the confirmation process? Is the duty to “advice and consent” to judicial nominees only a duty to ensure that the nominees meet a modicum of respectability, a very low bar that Judge Bork easily cleared? Or is the Senate role far more robust and engaged than that? More pointedly, should the Senate inquire at all into the constitutional views of the nominee and go as far as to reject the nominee only on the strength of these views?

These are not easy questions by any means, and I do not mean to suggest that they are. Rather, these questions are central in the Bork debate, yet Nocera assumes them away. And so his column turns into a useless diatribe. 

Far more useful in the context of the Bork nomination is a discussion of the role of President Reagan in all of this. At the time of the Bork nomination, Reagan was a lame duck president in the midst of the Iran Contra scandal. He was in no position to expend political capital to help his nominee through the confirmation process, because he had very little of it. Further, this was a fight over Justice Powell’s seat, the Court’s swing justice. Reagan knew – or should have known – that his choices were radically curtailed by these factors. This was a time were compromise was of the essence. 

Yet Reagan and his advisers thought otherwise. And the confirmation battle followed. 

One can argue, as does Nocera, that the means used by liberal groups were “despicable.” But again, this argument demands an answer to the earlier question. Is there a role to play by the opposition party and its allies when confirming judges for lifetime appointments? Nocera implies that there are limits to this role, and that they were clearly crossed in 1987. He also wants to argue that “the line from Bork to today’s ugly politics is a straight one.” 

Clearly, Mr. Nocera is no historian. He should go read about the nomination of Justice Brandeis to the Court and the relentless attacks by those who opposed him. Or more recently, he would do well in reading the record of the Senate hearings over the nomination of Thurgood Marshall to the Court. In Bork’s case, the alleged unfairness is one of misrepresenting his views – which raises a question about the role played by the relevant publics on the receiving end of these attacks. In Marshall’s case, however, the attacks were racist to the core, far more “despicable” than anything Bork endured. How is this for a fair question, from Committee chairman James Eastland: "Are you prejudiced against white people in the South?" Or the following, from Strom Thurmond:
What constitutional difficulties did Rep. John Bingham of Ohio see -- or what difficulties do you see -- in congressional enforcement of the privileges and immunities clause, article IV, section 2, though the necessary and proper clause of article I, section 8?
Senator Thurmond's questioning was soon followed by Michael Jaffe, general counsel for Liberty Lobby, who proceeded to probe the nominee about his association with "Communist" groups, such as the International Juridical Association and the National Lawyers Guild. Mr. Jaffe also stated Judge Marshall had "a record of duplicity and arrogance unparalleled by that of any nominee to high judicial office in recent times."

We easily forget these hearings, and grant conservatives a free pass, because Marshall gained confirmation. 

I take a different view. In light of recent conservative attacks on the judiciary by pundits and presidential hopefuls alike (see, for example, here and here), I view the failed Bork nomination as a moment when partisans understood what the stakes were and acted accordingly. If conservatives were honest with themselves, and in light of their present rhetoric, they would agree. 

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