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February 2013

The innocence of Robert H. Bork

by Andrew C. McCarthy

How Washington cheated a celebrated jurist out of a Supreme Court nomination.

It is not sufficient to observe the truism that the victors write the history. The battle over Judge Robert Bork’s nomination to the Supreme Court was an epic moment in our culture war. For the modern Left, history is not merely a victor’s accounting. It is the unseen hand of Progress, the agent of Change. When the Left wins, history’s losers are not just consigned to unflattering portraits but to damnatio memoriae.

It was little surprise, then, that Bob’s passing a few days before Christmas was largely marked by not being marked at all—as if the death of this titanic figure were not significant enough a news story to rate mention between fiscal cliffs and the drama over a potential interruption of the First Family’s latest extended holiday. In its post mortems, the commentariat was typically spiteful, with a number of honorable exceptions—moving talk-radio tributes by Rush Limbaugh and Mark Levin (the latter having been a top Reagan Justice Department official at the time of Judge Bork’s nomination), a touching remembrance by sometime Bork critic David Frum, and a laudatory albeit censorious appraisal by Bork’s oft-time academic critic Richard Epstein spring to mind. Bile from the Left, which surely hurled enough in the controversial jurist’s direction in life, was to be expected. Most disappointing, though, was the usually sensible Mickey Kaus’s assertion that, back in that 1987 hellfire, the Senate had “Borked a guilty man.”

Kaus’s snark owed to what he regards as Bork’s convenient conversion to “some of the more bogus doctrines of liberal legalism” in “his desperation to get confirmed.” Put aside whether this specific charge is worthy. (Kaus seems particularly exercised by Bork’s acceptance of the “rational basis test” under which courts must uphold even discriminatory statutes if the legislature had a plausible reason for drawing the distinction in question—a deeply rooted check on judicial imperialism to which, it bears noting, Bork was no eleventh-hour convert.) The campaign leading to Bork’s defeat enshrined his name in our modern lexicon as a verb meaning to defame in the most demagogic fashion.

Recall the sulfuric slander with which Senator Edward Kennedy greeted Bork’s nomination:

Robert Bork’s America is a land where 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, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.

They Borked a guilty man? What, pray tell, would one have to be guilty of for that kind of calumny to be so casually excused?

Mind you, not a single word of Kennedy’s tirade was true. Bork—who was pro-abortion for much of his life, but changed his mind precisely because he was not the implacable ideologue of his detractors’ caricature—rejected Roe v. Wade’s fabrication of a right to terminate pregnancy because it was an invalid exercise in judicial legislation. Putting aside that this is an assessment shared by not only legions of constitutional scholars but millions of women, overruling Roe would not make abortion illegal. It would return the question to its rightful arbiters, the states, the vast majority of which would permit abortion with varying degrees of regulations. In “Robert Bork’s America,” the American people, rather than the judiciary, would be trusted to decide such matters. In reality, no woman in America who wanted a legal abortion would be denied one.

The scurrilous attack on Bork’s abortion position was only one plank in the comprehensive libel the Left now calls the “War on Women”—waged by such “far right” exemplars as Mitt Romney (a mild-mannered Massachusetts moderate). In Bork’s case, it included the even more preposterous claim that he construed federal law to permit the forced sterilization of women—a canard relentlessly blared by a Kennedy sidekick, Senator Howard Metzenbaum, aided and abetted by People for the American Way, a contrivance of Norman Lear, then-luminary of the Hollywood hard-Left (a redundancy, I know).

To call this a gross distortion of Bork’s jurisprudence is a gross understatement. The sterilizations in question, which were voluntary and occurred years before Bork was appointed a judge of the federal appeals court, stemmed from the fact that no technology then existed to remove lead from a manufacturing process; thus, the company’s only alternative under the federal law of unsafe work conditions was to remove women of child-bearing age. Five women who wanted to keep their jobs opted to be sterilized. Bork’s opinion, on behalf of a three-judge panel, involved only whether, years after the fact, the company should be assessed a minor fine for informing the women of this legal option. For this, he was depicted as a misogynist.

The framing of Bork as a racist was, similarly, a noxious fiction. In point of fact, Bork taught and frequently argued that the Constitution does not permit government to segregate by racial classifications. To be sure, he was a naysayer on the Supreme Court’s reasoning in Brown v. Board of Education, the seminal civil rights case invalidating the “separate but equal” rationale for school segregation. Still, he supported the Court’s result. In fact, as I have observed in these pages (“Robert H. Bork on Law and Life,” February 2009), Bork’s contention that the Fourteenth Amendment’s Equal Protection Clause, as originally understood, forbade “separate but equal” is less than compelling—I find his thinking more consistent with the notion that outlawing official racial segregation was a cause worthy of departure from originalism, notwithstanding his indisputable dedication to that philosophy of judging.

Nevertheless, Bork was falsely accused of spoiling to “turn back the clock” on the civil rights advances of the 1960s, with People for the American Way, in the sonorous voice of the actor Gregory Peck, accusing the jurist of favoring poll taxes and literacy tests to bar blacks from voting. Yes, Bork disagreed with some voting rights decisions—in cases not involving claims of racial animus—that reversed settled precedent. Many Supreme Court justices of the time echoed his views. Yet, in Bork’s case, these conventional views were twisted into an indictment of racism. The Left made opposition to his nomination a political litmus test.

The remainder of Kennedy’s egregious charges likewise melts before any reasonably objective scrutiny. No one, it should be recalled, knew this better than Senator Chappaquiddick himself. As Bork noted in The Tempting of America, his tour de force that served, in part, as a hair-raising memoir of the nomination fiasco, a seemingly embarrassed Kennedy burbled, “Nothing personal,” when Bork met him face-to-face after the onslaught. Later, he admitted to The Boston Globe that the purpose of his “stark and direct” statement was to “sound the alarm and hold people in their places”—i.e., pressure senators not to commit themselves to vote in Bork’s favor—while his cabal tried to gather, or distort, the necessary supporting “material.”

It worked. While convention had justices confirmed within a matter of weeks, Bork’s hearing was delayed for months. That was essential for purposes of the revolution the Left had in mind: to turn the traditional vetting of a judicial nominee’s integrity and competence into a machine-style political campaign—a vicious, populist, enterprise in dividing the nation along lines of race and class. (Sound familiar?)

In the weeks since the 2012 election, there has been some speculation in the Left-leaning press about whether President Obama’s nominees for second-term cabinet vacancies would be “Borked.” This again demonstrates how nimble the regnant destructive generation of the 1960s has become, and how flat-footed their bourgeois opposition, in not so much dealing with as manufacturing, framing, and executing public controversies.

If, in deference to Judge Bork, we are to be originalists about “Borking,” the signature feature of the phenomenon is its egregious falsity. When confirmation opponents have said of, say, Secretary of State nominee John Kerry that he was a summer soldier who emboldened America’s wartime enemies by trashing his military medals and defaming his comrades in arms; or of Supreme Court nominee (now Justice) Sonia Sotomayor that she was a longtime member of the radical La Raza (“the race”) organization who brayed that a “wise Latina” was sure to have better judgment than white men, these were not instances of “Borking.” Those voluminously corroborated claims are all true. The campaign against Bork was despicable not for its ferocity but for its flat-out falsity.

Judge Bork was as eminent and hyper-qualified a nominee for the Supreme Court as can be imagined—a renowned scholar and successful practitioner: a pioneer of antitrust law, Yale Law School professor, and former Solicitor General of the United States who, before the same Senate only five years before his nomination to the high court, had sailed to confirmation as a judge of the distinguished federal appeals court for the D.C. Circuit. Had the Senate’s advice-and-consent function been circumscribed by the standing tradition of two centuries to a probe of the nominee’s scruples and legal acumen, Bork would have been confirmed overwhelmingly and within a matter of days.

Moreover, even if the inquiry had merely been extended to cover judicial philosophy—a welcome development, actually—Bork’s confirmation should have been uncontroversial. Originalism is a result-neutral school of thought. It hews to the Framers’ conception of a federalist system in which people govern themselves with only modest judicial intrusion. It is not anti-abortion, anti-labor, or opposed to the robust expansion and protection of civil liberties. It simply holds that the Constitution and relevant statutes may not be judicially imagined or rewritten to attain these ends; they must be accomplished, if at all, by amendment and legislative enactment—ensuring that such innovations are what the Americans desire, not what is imposed on them.

A year before Bork’s nomination, his fellow originalist, Justice Antonin Scalia, was confirmed by a vote of 98–0. Then a prominent leftwing senator, Joe Biden remarked that this was as it should be given Scalia’s obvious qualifications, and that if “the [Reagan] administration sends up Bork and after our investigation he looks a lot like another Scalia, I’d have to vote for him. . . . I’m not Teddy Kennedy.” In fact, Bork voted the same way as Scalia 98 percent of the time when the two were D.C. Circuit judges. Biden, it should go without saying, voted against Bork.

Thus did the Left’s practice of “Borking” redefine the very concept of judicial philosophy. As Bork ruefully recalled in The Tempting of America, it would henceforth no longer be “the nominee’s approach to constitutional interpretation and his conception of the role proper to judges” in a free republic, but rather “a checklist of results that were to be assessed for political popularity.”

This national catastrophe has corrupted the judicial role, so essential to the rule of law. Simultaneously, it has poisoned the confirmation process and discouraged decent men and women from serving. There are precious few who have been as decent and deserving as Robert Bork. They “Borked” an innocent man, and the nation is by far the worse for it.

Andrew C. McCarthy is the author of the The Grand Jihad (Encounter).

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This article originally appeared in The New Criterion, Volume 31 February 2013, on page 9

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