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Thursday, December 27, 2012

Robert Bork and the birth of modern hyper-partisanship

Rivalry and competition between political parties is the essence of democracy. It's as old as politics and will never cease. But at the core of the legislative process in western democracies, there used to be the idea that the interests of the pubic should take precedence over the opportunity to get one upmanship over the opposition. The Democratic Party's' treatment of Robert Bork during his 1987 nomination to the US Supreme Court changed all that.

It also changed the nature of the highest judicial appointments in America from taking the best and the brightest to the quietest and most pliable.

Bork, who died last week at the age of 85, was nominated by President Ronald Reagan to replace retiring Justice Lewis Powell. By any conceivable legal standard, Bork was eminently qualified to take a seat on the highest court. As an Appellate Judge he wrote the majority of the judgments for the US Court of Appeals for the District of Columbia from 1982 to 1988 without once having a decision overturned by the Supreme Court. His Achilles Heel was that he was outspoken.

President Ronald Reagan with Robert Bork
A prominent legal scholar and thinker, he has published books and written decisions that made his position on the law and the Constitution clear.

After almost two full presidential terms of Ronald Reagan riding roughshod over the Democrats, and with another election looming, Ted Kennedy and his party decided to flex their muscles to try to reassert their place in the power sphere.  Bork was the opportunity they saw to get there.

Bork was publicly vilified, lied about and ultimately rejected as a Supreme Court justice. And though they won the battle, it was a Pyrrhic victory. An enduing, spiralling, petty tit-for-tat in Congress has lasted for the last quarter century that has made cooperation between the Republicans and Democrats increasingly difficult.

And since 1987, Presidents knew that strong, publicly stated opinions of outstanding legal minds would make  them assailable to the vicious, unfounded attacks launched by Kennedy and his colleagues against Bork. So less forthright, less brilliant, and less vulnerable jurists who were quietly vetted by presidential administrations became Supreme Court appointees.

Bork's defeat became America's open wound.

With his death, now might be an appropriate time to look back and see if there is a way to start healing a still debilitated process.


Anonymous said...

If Bork had his way it would still be legal in the US for private clubs and resorts to bar Jews and Blacks from membership. Bork's view of the law was a throwback to the 1880s and it's a good thing he never served on the Supreme Court.

Richard K said...

That`s a tremendously simplistic and unfair summary of Bork.

Anonymous said...

He opposed the Civil Rights Acts of the 1960s and he opposed banning clubs, resorts and universities from barring or restricting Jewish or Black membership. Which of those statements is incorrect?

Unknown said...

A number of Democrats have conceded that borking Bork was stupid and counter-productive, since Republicans subsequently mastered that dark art.

And if Kennedy and Biden wanted to take down the nomination in the full Senate, Bork's role in the Saturday Night Massacre, which is what started the impeachment process against Nixon in a serious way, probably would have been enough.

Also, Republican attempts to impeach or otherwise remove Justices Fortas and Douglas during the early Nixon administration should probably be noted in the broader context of the Bork nomination.

Richard K said...

Anon - Bork was not an evil racist - he was a Constitutionalist. His decisions were based on that principle, which is why his decisions as an Appeals Judge always held up. A judge's role is not to make law but to rule on it's constitutionality.

Skippy, Bork's role as a Nixon official was as you say, but that wouldn't or shouldn't have disqualified his credentials as a jurist. No one as ever suggested, as far I know, that he did anything illegal as an administration official, and there were a lot in Nixon's White House who did.

And indeed, partisanship preceded the Bork rejection, but it brought things to a whole new level and as you say, the GOP became as if not more adept at it as the Dems.

Unknown said...

As a matter of fact, a judge subsequently found the firing of Cox illegal in a civil suit brought by Ralph Nader which, in part, is why Nixon later appointed Leon Jaworski special prosecutor.

Should a solicitor general who was found to have engaged in illegal conduct be confirmed to the Supreme Court?