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Wednesday, August 3, 2011
TWENTY-FIVE YEARS AGO, THE NOMINATION OF ROBERT BORK TO THE SUPREME COURT SPLIT WASHINGTON;
Yesterday, the Mitt Romney campaign released the names of the members of a "Justice Advisory Committee" that will counsel the Republican presidential hopeful "on the Constitution, judicial matters, law enforcement, homeland security, and regulatory issues.” The committee consists of 60 lawyers, most of them Washington insiders, but for those with a knowledge of judicial and, in particular, Supreme Court history, it is the leadership of the committee that will raise some eyebrows. Romney announced three co-chairs: Harvard Law professor Mary Ann Glendon, former head of the Federal Communications Commission Richard Wiley, and -- here is the headliner -- former DC Circuit Court judge Robert Bork.
Glendon, who is a forceful pro-life advocate, shores up Romney's position with social conservatives (he switched from pro-choice to pro-life in 2005) and Wiley is a savvy Washington communications lawyer. But Bork is the most divisive choice, a figure of considerable controversy whose nomination to the Supreme Court went down to defeat in 1987, thanks to a vigorous campaign against him by Democrats, particularly the late Senator Ted Kennedy. That campaign led to an unusual "achievement" for the now 84 year old former judge: his name became a verb. In fact, you can look it up. According to the Oxford English Dictionary, "bork" is an American slang term describing efforts "to defame or vilify" someone "with the aim of preventing his or her appointment to public office..."
Bork, who had been a professor at Yale Law School and served as Solicitor General in the Richard Nixon White House, was nominated by President Ronald Reagan for the seat that would eventually go to Anthony Kennedy, who is still a member of the Supreme Court today. Back then, the judge was feared by many on the Left, not only because he had strongly-articulated originalist views on how to read the Constitution, but also because he was an influential thinker whose views on privacy, especially, were well known. As a member of the DC Circuit Court of Appeals Bork had suggested that the Supreme Court erred in finding a "right to privacy" in the Constitution, leading many to wonder if he joined the Court he might persuade it to reverse Roe v Wade, the landmark 1973 abortion decision finding a privacy right that extended, under certain conditions, to the decision to have an abortion. Here is how Senator Kennedy, speaking on the floor of the senate, described what America would be like if Robert Bork became a justice on the Supreme Court: "...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...No justice would be better than this justice."
Kennedy's heated rhetoric was meant to scare and it worked. The nomination went down to defeat, 58-42, one of only twelve times in American history that the senate has rejected a president's nominee to the High Court. But with the Bork nomination, American politics changed. Historians looking for the origin point of the partisan rancor that has dominated our politics over the past two decades, culminating, perhaps, with the debt ceiling debate of the past few weeks, would do well to look here. Now, with Bork as a person of influence in the Romney campaign, can we expect him to become a lightning rod again?