The death of Senator Edward Kennedy from a malignant brain tumor superimposes somber intimations of mortality onto a frequently frivolous political scene. It puts us in mind us of what Wordsworth called the “fallings from us, vanishings” that ultimately reconcile us to our own mortality. As a young man Senator Kennedy became, as he is today, the pillar of a large extended family. We extend our sympathies to his family upon his death.
Senator Kennedy became the lion of the Senate and of American liberalism. For better or worse, his legislative accomplishments have done much to shape the United States into the form he has desired. We will be living with, and taking the measure of, his legacy for a long time to come. Upon the announcement of his illness in May 2008, Washington Post columnist David Broder paid him a personal tribute that took account of his long career.
In one respect, Senator Kennedy’s contribution to our public life has been indisputably negative, although there may be argument over the extent of its influence. In the role he played opposing the nomination of Robert Bork to the Supreme Court in 1987, Senator Kennedy was responsible for a willfully false and remarkably coarse attack on Bork.
When Ronald Reagan nominated then-D.C. Circuit Judge Bork to the Court upon the retirement of Lewis Powell, Senator Kennedy had prepared to do battle. Anticipating the nomination of Bork or someone like him to fill Powell’s seat, Kennedy aide Jeffrey Blattner had written a statement denouncing the nomination. Immediately following the announcement of Bork’s nomination on July 1, 1987, Senator Kennedy took to the floor of the Senate to make the statement Blattner had written:
Robert Bork’s America is a land in which 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 could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy….
Alluding to Bork’s execution as Solicitor General of Nixon’s order to fire Archibald Cox, Kennedy contintued:
President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of American. No justice would be better than this injustice.
New York Times reporter Ethan Bronner (then of the Boston Globe) told the story of Kennedy’s statement denouncing Bork in Battle for Justice: How the Bork Nomination Shook America. In the book Bronner comments harshly on Kennedy’s statement, though Bronner’s comments do not exhaust the statement’s falsity:
Kennedy’s was an altogether startling statement. He had shamelessly twisted Bork’s world view — “rogue police could break down citizens’ doors in midnight raids” was an Orwellian reference to Bork’s criticism of the exclusionary rule, through which judges exclude illegally obtained evidence, and Bork had never suggested he opposed the teaching of evolution…
Bronner shows that Kennedy’s false charges against Bork did not derive from some mistake or misinterpretation, but were rather the deliberate acts of a powerful man for whom the ends justified the means:
Kennedy did distort Bork’s record, but his statement was not the act of a desperate man. This was a confident and seasoned poliltician, who knew how to combine passion and pragmatism in the Senate. Unlike the vast majority of those who were to oppose Bork, Kennedy believed from the beginning that the nomination would be defeated and that the loss would prove decisive in judicial politics.
As Bronner suggests, Senator Kennedy’s unconstrained opposition to Bork’s appointment has indeed had profound effects in the practice of “judicial politics,” preeminently in the confirmation proceedings following the nomination of Justice Thomas, but also more recently in the confirmation of Justice Alito. And it has become something of a template for liberal attacks on mainstream conservatives beyond the realm of judicial politics.
The tone set by Senator Kennedy in connection with the Bork nomination lives on in the Senate. It also lives on in the mainstream media — see, for example, John Hinderaker’s “A conspiracy so lunatic” — and on the left-wing side of the Internet. Indeed, we have seen it on display this month in the White House/Reid/Pelosi attack on the opponents of Obamacare.
We live in Edward Kennedy’s America not only in the consequential legislation that he sponsored and saw through the Senate, but also in the afterlife of the vulgar political sham on which Senator Kennedy relied to defeat the nomination of Judge Bork.