Wednesday, June 20, 2007

The Other Half of "Borking"; Or, With Friends Like These...

Over at the VC, Ilya Somin writes about what he would like to ask Robert Bork at an upcoming conference on Bork's work in which both Somin and the judge will be participating. Somin writes that he plans to ask Bork whether "his views on legal and/or political issues changed as a result of the ordeal he went through during his ultimately unsuccessful Supreme Court nomination process." In other words, was Bork radicalized by the scorching (and, in my view, often unfair) criticisms Bork received in the course of the nomination process?

It's a good question, although I'd be surprised if the judge says anything terribly revealing in response. I think Somin should also consider the other half of the question, though: Did Bork's views change as a result of the support he received during the course of the confirmation process? In the wake of such controversies, people often consider the ways in which vehement criticism can alter one's views, usually by hardening them. Less often, though, do they consider the ways in which the equally vehement praise and support the subject of a controversy receives from his confreres and political allies, who have themselves been whipped into a lather by the other side's vehemence, may similarly harden one's views. Of course, this isn't limited to one side of the political divide -- to the contrary, the political divide depends on such controversies, and the views of individuals on either side may be reinforced, or distorted, depending on how you see it, by this dynamic. I think here of the Dixie Chicks.

I imagine it must be nearly impossible to stay centered in the face of such public storms, simply in light of the large number of people in this fine country. Imagine being the center of a public debate about which 99 percent of the country couldn't care less. Then imagine that only one percent of the interested one percent of the population is moved to write a letter, or a blog post, or what have you, expressing their views, pro and con -- in other words, some 30,000 missives. It puts Miracle on 34th Street to shame. Add the klieg lights, the hostile interlocutors at the hearing, the equally large horde of people telling you you're absolutely right; mix and stir. The result: no matter how many people are altogether indifferent to you, you are at once convinced that you are hated by a vast horde of people, and equally convinced that you are vindicated by the enormous wave of support you have received. I can't imagine that anyone could easily retain their equilibrium in such circumstances. So, to modify Prof. Somin's question, the question is not just whether Judge Bork (or Natalie Maines, or the object of controversy du jour) was radicalized by his adversaries, but whether he was radicalized by his friends too.

I must add, to further throw cold water on Prof. Somin's question, that I suspect the actual subjects of controversy, like Bork or Maines, are among the least reliable witnesses on such matters.

8 comments:

egarber said...

Though he might not admit it, I'd guess one lesson Bork learned was that the less information given up during a confirmation hearing, the better.

The latest slate of Justices have proven that playing it safe -- i.e., not going out of your way to call the Ninth Amendment an inkblot, for instance -- is a virtual guarantee to be confirmed. After all, it sounds "judge-like" to average folks when you say it would be "irresponsible to talk too specifically about an issue that's constantly in front of the court".

Michael C. Dorf said...

The Bork confirmation hearings occurred in the fall of my 1L year in law school and I paid close attention. I pretty strongly disagree with Paul's contention that Bork was treated unfairly IN THE HEARINGS. There was one speech by Ted Kennedy that was arguably unfair. He said things like "in Robert Bork's America blacks still ride at the back of the bus," which could have been understood to mean that Bork would have voted to overturn Brown v. Board; he certainly would not have. But even Kennedy's speech was based on Bork's prior writings and was not simply made up. Other interlocutors--most notably Arlen Specter and Joe Biden--engaged Bork's views on the merits and, in my view, bested him. The principal basis for the claim that Bork was unfairly treated concerned statements made by interest groups and others outside the hearings. Those statements were political hyperbole but the reason they worked--whereas organized campaigns against subsequent, equally conservative nominees have not--was Bork's performance in the hearings. As egarber notes, Bork actually answered questions, and the answers he gave were very disturbing to a great many people watching. (I realize this is a long response to a tangential point in Paul's post.)

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