That Speech By Ted Kennedy

No, I don't have in mind the moving speech Senator Kennedy gave a few nights ago at the Democratic National Convention. I'm talking about the speech Kennedy gave over two decades ago, expressing his view that the Senate should reject President Reagan's nomination of Judge Robert Bork to the Supreme Court. In my latest FindLaw column, I explain that, as Chairman of the Senate Judiciary Committee, Senator Biden was impeccably fair in how he conducted the confirmation hearings for Judge Bork and for Judge, now-Justice, Clarence Thomas. In an Op-Ed in yesterday's NY Times, Jeff Rosen takes the same view. Rosen goes on to charge, however, that unlike Biden,

some liberal senators and interest groups were eager to distort [Bork's] record. Hours after the nomination was announced, for example, Senator Edward Kennedy charged that Robert Bork’s America is a land in which women would be forced into back-alley abortions.”

There is no question that Kennedy's speech was hard-hitting. But it was not unfair. Kennedy began by denouncing Bork for acting as Presient Nixon's Saturday Night Massacre henchman during Watergate. He strongly criticized Bork for opposing the 1964 Civil Rights Act, for the narrow view of the First Amendment Bork took in a well-known Indiana Law Journal article, for his narrow view of the Establishment Clause and the Fourth Amendment, and for his opposition to Roe v. Wade. In none of these examples did Senator Kennedy misstate Bork's views, which were a matter of public record. The only example that was arguably personal was the criticism of Bork's "unconscionable" act of firing Archibald Cox as betraying a lack of "integrity." But note that this was an inference about public character based on Bork's actions as a public official. Kennedy did not say that Bork was a bad man because he watched pornographic movies (he apparently did not) or because of some other irrelevant personal issue.

How then, did Kennedy "distort" Bork's record? What I think Rosen must mean---and what I have heard from conservatives over the last two decades---is that Kennedy conflated policy preferences with constitutional law: Just because Bork couldn't find an abortion right in the Constitution doesn't mean that Bork wants women to be relegated to the back alley; he wants the issue decided by the legislative process. This claim fails for two reasons.

First, in one important respect, Kennedy was pointing to Bork's policy views, not just his constitutional views. Bork opposed the Civil Rights Act (when it mattered) on policy grounds. He thought the freedom of whites not to associate with blacks was more important than the freedom of blacks to be able to use public accommodations.

Second, let us suppose that some substantial portion of the people who heard or read Kennedy's speech were not sophisticated about constitutional law. Let's suppose, that is, that they thought Bork opposed abortion on policy grounds rather than because of his interpretive method. Well, if those people were nonetheless sophisticated enough to distinguish between constitutional views and policy views, then Bork's case would actually be helped by their being misled. They would think, "okay, so he'd vote for laws criminalizing abortion, but he's not going to be a legislator, so I don't care about that." More likely, however, the sort of person who would be misled by Kennedy's speech into thinking Bork opposed abortion on policy grounds would also not understand that the Supreme Court doesn't legislate. But for such unsophisticates, the relevant question about the Supreme Court can only be what sort of outcomes it will produce. And it is completely fair to say that had Bork been confirmed, and had he succeeded in casting a decisive vote to overturn Roe, there would be many back-alley abortions.

That might not be "Robert Bork's America" in the sense that Bork affirmatively wanted abortion to be illegal (although his post-judicial career indicates that he does in fact want abortion to be illegal), but it would be Robert Bork's America in the only sense that mattered: how he would have moved the law as a Supreme Court Justice. That's what Senator Kennedy was talking about and that's why it's ultimately irrelevant if some people thought he was talking about Bork's policy views. Such policy views were themselves irrelevant.

Thus, once again, I find myself defending a prominent Kennedy---this one fighting for his life---against an unfair charge by my friend Jeff Rosen.

Posted by Mike Dorf