Fake Centrism Regarding Judicial Nominees (or, Let's Talk About Bork Again)

-- Posted by Neil H. Buchanan

Last Thursday, Professor Dorf wrote a very respectful (but quite clear-eyed) post discussing Robert Bork, in response to the announcement that the former judge and professor had died at the age of 85 the day before.  Here, I will add a few thoughts, both about Bork's judicial philosophy and about the truly distorted picture of his non-confirmation that has emerged over the last 25 years.

On the latter point, one could not find a more perfectly distilled version of the "Bork as victim of a dishonest liberal cabal" lie than one penned by New York Times columnist Joe Nocera last year. Nocera's title says it all: "The Ugliness Started With Bork."  No, it most definitely did not; and anyone who knows even the most basic facts about U.S. judicial history knows better.  Fortunately, the Times ran an op-ed last week that laid out those facts, by Rutgers historian David Greenberg.  As Greenberg reminds us, any "ugliness" in judicial nominations long preceded Bork.

Moreover, we must remember that what happened to Bork was actually quite beautiful: A fair process, during which people deeply engaged with the issues, after which they reached a difficult, honest conclusion.  Bork's supporters can rue the result, but any claim that he was falsely represented or "slimed" is simply false.

It should hardly surprise us that the right-wing meme on Bork is wrong.  Twisting the history serves the purposes of the hard right political movement, and if they can convince some centrist and liberal dupes to repeat the falsehood, they are obviously happy to do so.  Nocera certainly played the role of dupe excitedly.  Even though he often takes liberal positions on issues, he seems to have spent too much time sitting in an office near Thomas Friedman at The Times.  Like Friedman, Nocera apparently feels the need to prove his "reasonableness" by frequently agreeing with Republican talking points on one issue or another.  (Friedman's latest column, for its part, paired a short critique of Republicans's current dysfunction with a paean to the right turn that the Democrats took in the 1990's.  I will write more about that later this week, unless other issues intervene.)

Beyond the faux-reasonable posturing, what was the substance (if any) of Nocera's criticism of the supposed liberal hit-job on Bork?  He argued that Bork was very smart, and that he had sterling academic credentials.  He then said that liberals knew that Bork might actually be confirmed by the Senate, so they had to attack him dishonestly.  Nocera breathlessly wrote that a liberal advocacy group's "memo noted that, 'Like it or not, Bork falls (perhaps barely) at the borderline of respectability.' It didn’t matter. He had to be portrayed 'as an extreme ideological activist.' The ends were used to justify some truly despicable means."

What Nocera failed to understand is that Bork was an extreme ideological activist.  Nocera twisted that memorandum to make it sound as if the group was making up the part about Bork being an ideologue, which (Nocera insinuated) must have been false because they acknowledged that he was on the "borderline of respectability."  There is, however, nothing inconsistent about being a right-wing nominee with borderline respectability and also being an extreme ideological activist.  His near-respectability came from his academic credentials, and from everyone acknowledging that -- substantive views aside -- he was a very smart guy.  No one ever said that he was a dope.  What people like Nocera never acknowledge is that selective recitations of credentials is a complete dodge.

Plenty of people, after all, have excellent academic credentials but are ideologically extreme.  Democrats would never have considered nominating, say, Duncan Kennedy to the Supreme Court.  A law professor at Harvard, Kennedy was a driving force in one of the most important intellectual movements in legal scholarship of the 20th Century, Critical Legal Studies (CLS).  Virtually no one would deny that he could pass the respectability test for a nomination, even if many people challenged the substance (and, more to the point, the real-world applicability) of CLS.  Even so, Democrats generally thought of Kennedy as an ideological extremist, and they thus were content to leave him off their short lists.

Republicans, however, were in the process of pushing the boundaries of acceptability with their nominees.  Rehnquist and Scalia had been confirmed with only minor and perfunctory opposition, and now the Reagan people thought that they could get the most extreme ideologue available onto the high court, too.

All of which brings us to the substance of Bork's views.  Nocera mocked the late Senator Ted Kennedy's speech in which Kennedy said that Bork would give "women workers the choice between sterilization and their job," leaving readers with the impression that this was some made-up fantasy from the liberal cabal.  In fact, this was based on an actual judicial opinion that Bork had written in his short time as a federal judge -- a decision that Bork had then blithely defended in his hearings by saying that the women who had "chosen" to be sterilized must have decided that they wanted to work more than they wanted to have children.  People, including many Senators, were understandably shocked.

Bork's views were so extreme, moreover, that this example was hardly a matter of tracking down a hidden nugget of insanity.  Bork's long-held views on states' rights were a matter of serious concern during the hearings.  Bork strongly asserted his view that the federal courts had illegitimately created the "one person, one vote" standard in the Constitution.  Bork said that states could, for example, set up legislative districts on the basis of how many rocks were in a geographic region, and that doing so would be no more constitutionally problematic than basing those districts on how many people lived there.  Bork was, in fact, the extreme ideologue who is most directly associated with the turn in conservative jurisprudence that has led to the federal courts' continuing refusal to do anything about redistricting and other abuses of the electoral system.  In short, Bork's version of jurisprudence said that democracy is not a core value of the Constitution.  That might have been academically interesting, but it was (and mostly still is, thankfully) undeniably extreme.

What makes the Nocera approach -- the "Let's admit that our liberal friends were unfair to Bork" view of moderation -- especially absurd is that all of Bork's views were fully explored in open hearings.  Fellow academics testified on both sides, with Cass Sunstein's testimony being an especially powerful statement of how extreme Bork's views were.  Most importantly, the late Senator Arlen Specter directly engaged Bork on all of those issues.  Bork responded, and the Senate decided that it was just too much to take.   Bork lost on the merits, not on the basis of some memos from some political activists and one speech by Ted Kennedy.

The bottom line is that a lot of smart people should never serve on the Supreme Court.  Bork was one of them.  Pretending that he was the victim of some unfair process is simply to deny history.  I do hope that he rests in peace, but I am certain that he received justice during his confirmation process in this life.