The toxic fallout of to bork
Robert Bork, though nominated to the U.S. Supreme Court by President Ronald Reagan, never served on it. But his death last week at age 85 delivered a reminder that his name will live on not only as a famous jurist, but as an infamous verb.
Ten years ago, the Oxford English Dictionary added this entry under “to bork”: “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”
And on the defaming and vilifying meter, it’s hard to top this outlandish outburst from Sen. Ted Kennedy on July 1, 1987 — less than an hour after President Ronald Reagan announced his appointment of Judge Bork:
“Robert Bork’s America is 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.”
That was the opening salvo in a relentless offensive against an accomplished judge’s reputation, both professional and personal. Judge Bork was not only victimized by distortions of his legal views as a constitutional “originalist.” He was subjected to revelations of his video rentals (though they were quite tame) — and absurd alarms that his marriage to a former Roman Catholic nun bode ill for the pro-choice cause.
Gregory Peck even displayed his dramatic flair in a television commercial warning that Judge Bork was an extremist who would take away precious American freedoms.
In 1986, Senate Judiciary Committee Chairman Joe Biden said he would vote to confirm Judge Bork if he were nominated to the high court. But in 1987, soon after the nomination was announced, Sen. Biden said he had changed his mind and would oppose it.
The committee voted 9-5 to reject the nomination. The full Senate rejected it by a 58-42 margin. Six Republicans voted against Judge Bork’s confirmation. Only two Democrats — our own Sen. Ernest F. Hollings and Oklahoma’s David Boren — voted for it.
The legal philosophy and record of Judge Bork — or any other court nominee — are fair game for debate.
But there’s no debating that the senatorial business of confirming federal judges was poisoned by the vitriolic abuse aimed his way a quarter century ago. Court nominees since then have been increasingly subjected to “litmus test” questions — and have been increasingly artful in dodging them.
As a result of the backlogged process, the federal bench remains woefully understaffed: Eight percent of appellate judgeships, and 10 percent on the district courts, remain vacant. The Administrative Office for the U.S. Courts classifies half of the existing openings as “judicial emergencies.”
Sen. Lindsey Graham has drawn scorn from some fellow conservatives for voting to confirm President Barack Obama’s Supreme Court nominees Sonia Sotomayor and Elena Kagan.
Yet as Sen. Hollings did when he voted to confirm Judge Bork, Sen. Graham recognizes that presidents should retain the traditional prerogative of picking federal judges, providing they are qualified. He also knows that senatorial prerogatives shouldn’t include ideologically based opposition to qualified nominees.
As Sen. Graham pointed out when he supported Ms. Sotomayor in 2009, a year earlier both White House candidates had “openly campaigned on the idea that the next president would be able to pick some justices for the Supreme Court.”
As Sen. Graham put it: “Elections have consequences.”
Unfortunately, the politicization of judicial confirmations — epitomized in the verb “to bork” — has consequences, too.