Reflections on the devolution

The long descent on which Senate Democrats have taken us now results in the smearing of Brett Kavanaugh. Neither Chuck Schumer nor Dianne Feinstein — nor any of the other Senate Democrats who announced their opposition to Kavanaugh’s confirmation to the Supreme Court months ago — is fit to carry Kavanaugh’s briefcase. How have we arrived at this pass?

If we were to assign a date to the beginning of the long descent, it might be July 1, 1987. That is the date on which President Reagan nominated Robert Bork to the Supreme Court. That is also the date on which Senator Edward Kennedy attacked Bork in willfully false and disgusting terms.

Judge Bork then served on the D.C. Court of Appeals. As Steve Hayward recalls in the second volume of The Age of Reagan, “Bork had been confirmed unanimously for the D.C. Circuit Court of Appeals in 1982, at which time the American Bar Association had given him a ‘highly qualified’ rating.”

President Reagan nominated Bork to the Supreme Court upon the retirement of Lewis Powell. Senator Kennedy was prepared for this moment. 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, 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 continued:

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.

Bloomberg News editor Ethan Bronner (then a reporter with the Boston Globe) told the story of Kennedy’s statement denouncing Bork in Battle for Justice: How the Bork Nomination Shook America. Bronner commented 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 demonstrated that the falsity of Kennedy’s charges against Bork derived, not from some mistake or misinterpretation, but rather from the deliberate misconduct 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 politician, 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 suggested, Senator Kennedy’s unconstrained opposition to Bork’s appointment has indeed had profound effects in the practice of “judicial politics.” As Steve put it in The Age of Reagan, “the subsequent public campaign of the activist Left was stunning in its breadth, depth, and dishonesty.” We saw it recur preeminently in the confirmation proceedings following the nomination of Justice Thomas, but not just there. It has become something of a template for liberal attacks on mainstream conservatives beyond the realm of judicial politics.

The tone set by Kennedy in connection with the Bork nomination lives on among Senate Democrats. 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 spark the defeat of Judge Bork’s confirmation.

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