If Bork Hadn’t Been Borked

Dec 20 2012 @ 12:47pm

Robert Bork died yesterday. I was a young journalist at the time of his confirmation hearings and wrote a piece at TNR that may have been among the first to coin the term "borking". I haven't changed my mind much since on that brutal political battle. There were many legitimate ways to discuss and criticize Bork's radical judicial philosophy, but the demagoguery deployed against him was a smear campaign of almost unprecedented ferocity. Ted Kennedy was among the crudest. (Wally Olson has a fascinating column on how Bork was also borked for not being a religious man.) The consequences are still with us, along with the deep polarization that event intensified in Washington. Reagan need not have nominated Bork, of course – and he deserves some of the blame for such a radical move. But the smear campaign from Bork's opponents dwarfed everything else, in my view. It helped create the poisonous atmosphere we now live in. Because it worked.

But of course I am glad that Bork did not get on the Court for many reasons, not least of which was his decline from a bracing intellectual breath of fresh air in a stiflingly liberal elite culture into what the GOP has become today: embittered, angry, bigoted in many ways, and hostile to modern American culture and life. The cheap polemics of his later work – the title of his book, Slouching Toward Gomorrah, tells you a lot – hurt his reputation as an intellectual. Maybe this degeneracy might not have happened without the bitterness of his political hazing. It's just a pity he didn't not have the strength of character to move on and let it go.

Balkin imagines the consequences if he had been confirmed to the Supreme Court:

Without the bitterness of the Bork confirmation battle, George H.W. Bush might not 53887794have felt gun shy about nominating a more overtly conservative candidate in 1990, when William Brennan retired. Therefore there might have been no "stealth nomination" of David Souter– and we might have gotten someone like Ken Starr, or Edith Jones, or even Clarence Thomas a year early. Later presidents might not have been so eager to nominate only young candidates with no paper trail, thus expanding the pool of talent available to the Court. (Bork was about 60 when he was nominated; later candidates have been considerably younger.)

Thus, flipping the order of the Bork and Scalia nominations might have allowed Presidents Reagan and Bush to stock the Supreme Court with reliable movement conservatives instead of Anthony Kennedy and David Souter. This, in turn, might have led to a conservative constitutional revolution that was much broader and deeper than what actually occurred during the Rehnquist Court. A five person majority consisting of Rehnquist, Bork, Scalia, Thomas, and Jones might have cut a broad swath through existing liberal doctrines, and the cause of gay rights would have made almost no progress.

Douthat's understanding of Bork's borking:

There was nothing pyrrhic about the liberal victory: The nominee who was confirmed in Bork’s stead, Anthony Kennedy, has indeed proven to be much more liberal on precisely those issues (privacy, sexuality, free speech) that Bork’s critics emphasized in their 1987 attacks. But the liberal focus on social issues in the Bork controversy, and the decision to prioritize them while accepting judicial nominees who would move the high court rightward in other ways, said a lot about the post-Reagan path that the Democratic Party would take, the concessions it would make and the lines that it would draw. In effect, the choice to demagogue Bork but confirm Kennedy signaled that liberalism was willing to concede more to economic conservatives than to social conservatives (or, if you prefer, to the Chamber of Commerce than to the Christian Coalition), and to retreat somewhat on regulation and taxes — Bork’s work on antitrust law did not feature prominently in the controversy surrounding his nomination — while holding firm or pushing further on questions like censorship and school prayer, abortion and gay rights.

(Photo: Former Supreme Court nominee Robert Bork listens during a panel discussion about the U.S. Senate's role on judicial nomination process September 1, 2005 in Washington, DC. Bork was nominated by President Ronald Reagan to the position of Associate Justice of the Supreme Court in 1987 but his confirmation was denied by the Senate. By Alex Wong/Getty Images.)