The Wages of Borking

This week marks the 30th anniversary of one of the turning points in modern American politics: the travesty of the Bork confirmation hearings. The “Borking” of Bork changed the rules of judicial appointments, and have poisoned judicial politics, ever since. It was a shameful moment because of the duplicity and hypocrisy of Democrats.

Several days before President Reagan announced Bork’s nomination to the Supreme Court, Howard Baker and Ed Meese met with Judiciary Committee chairman Joe Biden and Senate Majority Leader Robert Byrd to go through a list of possible nominees, and neither man indicated that Bork was unacceptable. Byrd said to a reporter when asked about Bork’s possible nomination: “I frankly think he would probably be confirmed,” and Byrd cautioned fellow Democrats that Bork’s nomination should not become “a litmus test of party affiliation and loyalty.” Sen. Dennis DeConcini (D-AZ) said “I start with the assumption that the President has the right to appoint whom he wants.” Biden, never at a loss for words—even if they were someone else’s—had told a reporter in 1986: “Say the administration sends up Bork, and, after our investigation, he looks a lot like another Scalia. I’d have to vote for him, and if the groups tear me apart, that’s the medicine I’ll have to take. I’m not Ted Kennedy.”

But then came Ted Kennedy’s single most demagogic moment on the Senate floor:

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, school children could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of 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. 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.

The White House and others thought Kennedy’s intemperate remarks would backfire, but they misjudged the determination of the left and was slow—fatally slow—to respond.

The subsequent public campaign of the activist Left was stunning in its breadth, depth, and dishonesty. It also made evident the startling politicization of civic organizations in America. By the time the Bork battle was over, about 300 organizations had joined the anti-Bork coalition, which raised and spent more than $10 million for advertisements and lobbying efforts. The intimidation tactics were not limited to senators; at least two black witnesses who were to testify on behalf of Bork were threatened with personal and professional reprisals and cancelled their testimony. Many of the opposition groups were predictable, such as the ACLU, the NAACP, feminists, environmentalists, and labor unions. But also joining the list was the Association of Flight Attendants, the Jewish War Veterans, the National Council of Senior Citizens, the YWCA, the United Cerebral Palsy Association, and the Epilepsy Foundation of America. George Will commented: “The ease with which such groups have been swept together for the first time in such a campaign reflects, in part, the common political culture of the people who run the headquarters of the compassion industry.”

During his tenure on the DC Circuit Bork had written or joined 416 opinions, many of them on the same side as fellow DC Circuit Judge Ruth Bader Ginsburg. Bork’s three-judge panels were unanimous 90 percent of the time, and Bork was in the majority 95 percent of the time. The Supreme Court had reversed not a single majority opinion Bork wrote or joined, while in six cases the Supreme Court had adopted a dissenting opinion of Bork’s. Bork’s critics said he was hostile to minorities and civil rights, yet he sided with minority plaintiffs in seven out of eight cases that came before him as a judge. As political scientist Aaron Wildavsky noted, “How could a superb legal craftsman be outside the mainstream when he was one of the leaders in determining what constituted excellence in legal reasoning [as a professor at Yale Law School and Solicitor General of the United States]? How could a judge who had written some 150 opinions, and had never been reversed by a higher court, be outside the mainstream?”

Much more can be said about this whole sorry affair (and I do in chapter 13 of the second volume of The Age of Reagan), but looking back after 30 years we might conclude that “Borking” is something that could only be done once, notwithstanding the lasting damage it has done to judicial politics. The recent confirmation hearings for Amy Barrett so glaringly revealed leading Democrats to be anti-Catholic bigots that their histrionics are now backfiring. And we have Harry Reid to thank for one fo the biggest political blunders of modern times­—throwing out the filibuster of judicial nominees. Given that Democratic Supreme Court nominees generally sail through while each Republican nominee is an uphill fight, this change means Republican president do not have to worry about gathering Democratic Senate votes and can nominate more jurists like Neil Gorsuch. Gorsuch wouldn’t have been confirmed but for Reid’s impetuousness. I always knew Reid would turn out to be good for something.

But let’s look finally at some data. This chart shows the real lasting wages of Bork: appellate court judgeships are becoming harder to get judges confirmed because of the legacy of Borking. You can see a fairly clear before- and after- break in the bars.

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