Bork’s defeat set tenor for future selections

This editorial from the Fort Worth Star-Telegram does not necessarily reflect the views of the editorial board of The Spokesman-Review

Judge Robert Bork wasn’t the ogre of Sen. Ted Kennedy’s terrifying purple prose. But the unsuccessful Supreme Court nominee, once a Yale law professor and a Justice Department official, was confidently outspoken about his views of the law. And he almost certainly would have had a different influence had he been confirmed for the seat that eventually went to Justice Anthony Kennedy.

Bork, who died Wednesday at age 85, wasn’t the first Supreme Court nominee to stir vehement opposition. President Lyndon Johnson’s bid to promote Associate Justice Abe Fortas to chief crashed, and the Senate rejected Nixon nominees Clement Haynsworth and G. Harrold Carswell.

But it was President Ronald Reagan’s nomination of Bork in 1987 that inadvertently drafted the playbook for bitter partisan fights over judicial appointments.

Republicans and Democrats both play the game when they’re in the majority, then grouse when they’re in the minority.

Bork advocated judicial restraint and an “original intent” approach to constitutional interpretation. But Democrats portrayed him as a dangerous troglodyte, not a complex thinker.

Kennedy described “Robert Bork’s America” as “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, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans.”

Bork’s defeat put the verb “bork” into the lexicon. Since then, most high-court nominees have talked a lot but revealed as little as possible.

Opponents too often cast any views discernible from a nominee’s work not as positions to be debated or disagreed with but as evidence of menace to all we hold dear.

Jeffrey Rosen, legal affairs editor of the New Republic, wrote that as a summer intern for then-Senate Judiciary Committee Chairman Joe Biden in 1987 he cheered Bork’s defeat but considered his treatment unfair.

The episode, Rosen wrote, “led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking.”

That’s not healthy for democracy or the court.