Borked

Ken Blackwell

by Ken Blackwell: Most of us would be honored to have our name become a verb. Especially those of us in public life. But that is not how Judge Robert H. Bork got into the dictionary. He was "borked" when President Reagan nominated him to the U.S. Supreme Court. No sooner had the announcement been made by the White House on July 1, 1987, than Sen. Edward M. Kennedy (D-Mass.) raced to the Senate floor to denounce the distinguished judge and former Yale Law Professor.

In Robert Bork's America, Kennedy roared, blacks would once again sit in the back of the bus, rogue police would break in our doors, and women would be forced to go to back alley butchers for abortions. On and on, Kennedy ranted, using every extreme and exaggerated charge he could employ, to tarnish the judge's reputation.

It was undoubtedly one of the most outrageous tirades ever seen in the Senate. It ranked with the notorious Sen. Bilbo. The Mississippi lawmaker once threatened to lynch a thousand blacks because Teddy Roosevelt had invited Booker T. Washington to dine at the White House.

But on that sultry July afternoon, Ted Kennedy was just warming up. His rant was the opening salvo in a well-orchestrated national media campaign to drag a good man's name through the mud. Every article Prof. Bork had ever written had been dredged for a statement, sometimes a sentence fragment, that could be twisted to make him look like a demon, a hater of women and minorities, of working Americans.

Every liberal and far-left group in Washington had a role in bringing down Judge Bork. Each one had an assignment, doled out in almost daily strategy sessions. All had one purpose in mind: Make Robert Bork appear so evil that not only would he be rejected by the U.S. Senate, but any future Republican president would be deterred from naming a conservative jurist to the high court for fear of another borking.

Sen. Joe Biden (D-Del.) was then the chairman of the Senate Judiciary Committee. Many hoped that Biden, who cultivated a reputation as a reasonable liberal, would rein in some of the wilder antics of his committee members. Their conduct was said to have been the model for the bar scene in Star Wars.

Biden had said he thought any nominee who was objectively qualified, and who was not guilty of moral turpitude, should be approved. But he quickly got the message. Instead of reining in his obstreperous colleagues, he egged them on.

For example, Sen. Howell Heflin (D-Ala.) asked Judge Bork, who was under oath, to describe for the committee his religious beliefs. Judge Bork patiently explained his life's spiritual journey. Neither Biden, nor any other committee member chose to object.

Every member of the committee that met to consider Robert Bork's nomination had taken an oath to support the Constitution. That Constitution was just two hundred years old in that summer of 1987. From the earliest drafts that venerable document had this to say about religious tests for federal office:...no religious test shall ever be required as a qualification to any office or public trust under the United States.If asking a nominee for federal office to state his religious beliefs, under oath, is not a religious test, what would one look like? The oafish Sen. Heflin would go on to vote against Judge Bork and to tell his credulous constituents he voted no because he thought the judge was "not a Christian."

Of course, the real reason liberals were determined to bring down Judge Bork was because he had criticized the reasoning in Roe v. Wade (1973). That infamous ruling brought abortion-on-demand to America. The reasoning in Roe had been criticized by liberal Archibald Cox, former Solicitor General under President Kennedy. It had been criticized by Justice Byron "Whizzer" White, a Kennedy appointee. It had even been criticized by John Hart Ely, a pro-abortion law professor in the Ivy League. Ely sharply criticized Roe "because it is not constitutional law and gives almost no sense of an obligation to try to be."

It did not matter what anyone else had said. This was for keeps. Bork had to be brought down. And liberals were willing to do anything to achieve that end.

The heart of Roe is the constitutional right to privacy. That right, of course, is mentioned in the Fourth Amendment. No argument there. Liberals believed so strongly in "a right of privacy" that it can even encompass a lethal act that fifty state laws had limited or proscribed in their homicide codes.

So what did they do about Judge Bork's right of privacy? They bribed local video store clerks to give them a list of Judge Bork's rentals. They were searching for pornography. They found the judge had a penchant for Broadway musicals.

Perhaps the high point--or low point--of the borking occurred on September 17, 1987, the actual Bicentennial of the Constitution. Sen. Kennedy grilled Judge Bork about his ruling in an interstate van line case. Kennedy thought Judge Bork had been insufficiently attuned to workplace safety.

Not a few observers noted the extreme irony. Ted Kennedy notoriously left a young woman in his car after driving off a bridge at Chappaquiddick in 1969. Fearing damage to his political career, he had failed to report the accident at a time when her life might still have been saved.

Soon after Judge Bork was beaten down, then Chief Justice Rehnquist published a history of the U.S. Supreme Court. In it, Rehnquist emphasized the 1805 impeachment trial of Justice Samuel Chase.

Chase was a high Federalist who ran afoul of the triumphant Jeffersonians. Vice President Aaron Burr, soon to leave office, presided over the Senate trial. Burr had only recently killed Alexander Hamilton in a duel. But he ran the Chase trial with the elderly Supreme Court justice, a Maryland Signer of the Declaration of Independence, in the dock like an accused criminal.

Rehnquist's history lesson noted that a Federalist senator in 1805 urged his friends to hurry to Washington City: You are used to seeing criminals arraigned before the judge. If you come quickly, you can see the judge arraigned before the criminal.

Few readers who had lived through Ted Kennedy's borking of an honorable judge and distinguished figure in the law missed the point of Chief Justice Rehnquist's story.

Robert Bork passed away over the Christmas holidays. He was honored in death as he was in life by those who love their country, honor justice, and who remember what civility used to be.
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Ken Blackwell is a senior fellow at the American Civil Rights Union and a member the ACRU Policy Board. He is a visiting professor at the Liberty University School of Law.  He is a contributing author to the ARRA News Service.

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