Friday, December 21, 2012

Catch of the Day

Goes to David Greenberg, who makes the case that "the campaign to defeat [Robert Bork] was neither unprecedented nor illegitimate." Absolutely true. Greenberg traces the history of Supreme Court nominations, noting that three nominations had been defeated within twenty years of the Bork defeat, with each drawing plenty of harsh words from their opponents -- as did justices who were confirmed in that era, including Thurgood Marshall and William Rehnquist.

What I'd add to that is just that context matters, too. Greenberg emphasizes that the long stretch of the twentieth century during which the Senate went along with the president was historically unusual and attributes it to deference to presidents, but I suspect that a larger portion of it was that divided government was less common in that era. Bork's nomination actually came just after an extended period of unified government, at least between the White House and the Senate. Ronald Reagan basically ignored that and tried to make a highly ideological pick; it's not a surprise that it didn't work. The similarly ideological Scalia pick (and the Rehnquist elevation) might have succeeded because Bork did such a terrible job of acting "mainstream" in his hearing, but a larger part of it was that the 1986 elections intervened, with Democrats regaining control after six years.

Back to Greenberg:

The Democratic campaign against Bork in 1987, then, wasn’t anything new; it merely resumed a dynamic that had been temporarily obscured — one as old as the republic and a perfectly fair, if often cynical, deployment of the Senate’s power to advise and consent.

The use of the verb “to Bork” may seem like a dig at an important intellectual figure in conservative jurisprudence and a martyr of the political right. But it really represents an unjustified triumph of a right-wing narrative that wrongly imagines blocking judicial nominees on ideological grounds to have begun with a gang of liberal Democrats — rather than with Republicans and conservative Southern Democrats opposed to the legal revolutions of the 1960s and keen to hand Lyndon Johnson a political defeat. It has given the legitimate restraint of presidential power a bad name.

And: nice catch!


  1. Exactly, I'd also say that Bork's behavior during the Saturday Night Massacre we less that awe inspiring. Indeed for someone who styled himself as this great moral voice he acted with a great deal of Realpolitik back in the fall of '73. Bork's terrible performance during his confirmation hearings also shouldn't be discounted, he said things that were massively unpopular and as a result lots of senator's voted against him, because his views were massively unpopular with there constituents. That's called democracy. My favorite was his criticism of the Griswold decision that threw out the decades old law in Conneticut that made all forms of contraception, even those used by a married couple under the advice of a physician, illegal. Bork pretty much argued that there was no difference between states making laws like that and states making laws regulating pollution from factories. That might be a interesting argument to make in a law school class, but making it on national television proved to be a poor choice.

  2. For a good, concise takedown of Bork, read this postby Conor Freidersdorf. I'd forgotten how menacing he was, but the comments brought it back.


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