An excellent history lesson came to us by way of the weekend Wall Street Journal in Robert Bork’s Proud Legacy and the Senate’s Shameful One. The link is paywalled, but here's an alternate link.
Bork was an originalist, and the idea of another originalist on the bench -- Antonin Scalia had been a Justice for about a year by then -- really scared Democrats who were steeped in the doctrine of a "living constitution." So they loaded both barrels and pulled the trigger.
Bork had been encouraged to fight back the way Oliver North had done, but Bork was too high brow to see it that way. Instead he simply answered their questions honestly. Honesty is a fine trait, but it's no match against opponents who don't possess it.
Here's Pulliam in the WSJ article:
Less than an hour after Reagan announced the nomination, Sen. Ted Kennedy made one of the most disgraceful speeches ever delivered on the Senate floor. He falsely accused Bork of standing for “back-alley abortions,” segregated lunch counters, “rogue police” conducting midnight raids, censorship and other horrors. “Not one line of that tirade was true,” Bork later reflected.
Here's Mark Pulliam again in City Journal. The Original Originalist.
Bork’s defeat was a watershed event in judicial politics, and reverberates still—it prevented a conservative realignment of the Court (due to the appointment of moderate Justice Anthony Kennedy in place of Bork) and forever transformed the judicial-confirmation process into an ideological gauntlet. No High Court nominee would ever again be as forthright, or be denied confirmation for such transparently ideological reasons. Ironically, the Senate’s rejection of Bork—due to his steadfast advocacy of judicial restraint and sticking to the constitutional text—did not prevent the ascendancy of his brand of “originalist” constitutional theory and, in fact, may have bolstered it, by giving him a bully pulpit that he would use effectively for the rest of his life.
I understand the administrations now run nominees through a rigorous skill test to get them through ambushes like the one that hit Bork. Kavanaugh may not get any Democrat votes, but hopefully he will be seen by the public as the winner.
------
2:16 PM 9/2/2018
Comments