The Watcher Cat

The Watcher Cat

Saturday, October 22, 2011

"Borking." Again with the "Borking."

Joe Nocera, alas, has fallen into the trap of assuming the conservative founding grudge story is true:
The Bork fight, in some ways, was the beginning of the end of civil discourse in politics. For years afterward, conservatives seethed at the “systematic demonization” of Bork, recalls Clint Bolick, a longtime conservative legal activist. The Atlanta Journal-Constitution coined the angry verb “to bork,” which meant to destroy a nominee by whatever means necessary. When Republicans borked the Democratic House Speaker Jim Wright less than two years later, there wasn’t a trace of remorse, not after what the Democrats had done to Bork. The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one.
The argument rests on two premises, both fundamentally false. The first is that Bork's rejection by the Senate marked an escalation of the political warfare over the judiciary. The seconds, as Nocera writes, is that "[n]or was Bork himself an extremist. He was a strongly opinionated, somewhat pugnacious, deeply conservative judge," and that, under the pre-existing mores of the Senate, he was entitled to confirmation. Both premises are so demonstrably false as to draw into question Nocera's competence.

First, the rejection of Bork's nomination took place 17 years after the far more dramatic effort on the part of the House Republicans to impeach sitting Justice a William O. Douglas over his off the bench writings (an article on folk music, and a book, Points of Rebellion, urging reform as the best means to avert social crisis, and another article, inoffensive in itself, but published in a risqué magazine), his votes in favor of free speech, and his personal life--Douglas was married to a much younger woman, and had been married three earlier times. (The source linked here--from Wikipedia--is unfortunately the best of a bad lot of online sources about WOD, and, if anything, is far too charitable to then-Rep. Gerald Ford's leadership of this attempt, which most accounts acknowledge was a political effort to break the liberal bloc of the Court). As my old law professor Henry Monaghan--a Bork supporter who testified on his behalf--acknowledged in a 1988 article in the Harvard Law Review "all the relevant historical and textual sources support the Senate's power when and if it sees fit to assert its vision of the public good against that of the President." By contrast, a federal judge is to be impeached only for "high crimes and misdemeanors," a problem Ford elided by redefining the constitutional text to mean nothing; as he said on the House floor, "[t]he only honest answer is that an impeachable offense is whatever a majority of the House of Representatives considers to be at a given moment in history."

To say that the Bork rejection began the hostilities is, to put it mildly, facetious.

As to whether or not Bork was entitled to a seat on the Court, Monaghan's article is clear that the Senate had plenary power to reject him; as to the question whether it correctly deemed him to be too extreme, let me quote an older post:
Bork was rejected--to my mind quite rightly--because of his philosophy. Not because he was conservative--William H. Rehnquist had just been elevated to Chief Justice, after all--but because his conservatism led him to discard whole sections of the Constitution based on his personal ideological committments.

So, for example, Judge Bork contended that the Ninth Amendment, reading that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" could not be a source of rights which were enforceable, and that only those explicitly enumerated in the text could be. He described its meaning in The Tempting of America, as indeterminate as an "ink blot", and claimed that the judiciary should simply ignore the Amendment, which would give [no] effect to the intention of the Framers. As Bork himself said, "the only recourse for a judge is to refrain from inventing meanings and ignore the provision, as was the practice until recently." (“Interpretation of the Constitution,” 1984 Justice Lester W. Roth Lecture, University of So. California, October 25, 1984).

However, the Framers had originally not included a Bill of Rights because, as recounted in The Federalist Papers, the enumeration of rights might be used as a means to claim that those not named did not exist. Federalist No. 84. Madison addressed this issue in explaining his addition of the text that became the Ninth Amendment:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution." (3 Annals of America at 354-363).

So the text of the Constitution, and Bork's own claimed ultimate goal of interpretation--effecting the actual original intent of the framers--both demonstrably preclude his reading of the Ninth Amendment out of the Constitution. nevertheless, for his own policy-based reasons, Bork argues for such a reading-out. As an equation, if T means text, for Bork T=0, absent any reference to original intent, structure, or any other ground.

Similarly, with the First Amendment, Bork argued that the scope of speech protected by the First Amendment should be limited to purely political speech, despite the text of the Amendment which carries no such limitation, providing only that "Congress shall make no law ....abridging the freedom of speech." (Bork's article, "Neutral Principles and Some First Amendment Problems" is published at 47 Indiana L.J. 1 (1971)). Again, Bork's resort to the intention of the Framers over the text was unconvincing to the say the least. Because of the lateness of the addition to the Bill of Rights to the Constitution, there are very limited legislative history materials to use in interpreting the text, but neither Madison's notes, nor those of the other members of the Constitutional Convention support Bork's reading of the Amendment. Nor does the early practice; the Supreme Court in Permoli v. First Municipality, City of New Orleans, 44 U.S. 589 (1844) and United States v. Cruikshank, 92 U.S. 542 (1875) twice held that the effect of the First Amendment was to completely disable Congress in dealing with regulation of speech and religion. (For more detail, see my First Amendment, First Principles at pp. 20-23).

Bork also described the Civil Rights Act of 1964 as enacting a "principle of unsurpassed ugliness" in forcing white operators of public accommodation to serve African Americans. "Civil Rights—A Challenge," The New Republic, August 31, 1963. The emotive language used by Bork was deemed by many on the left to justify Senator Kennedy's assertion that segregation at lunch counters would be a feature of "Robert Bork's America." All of these issues, and Bork's role in the "Saturday Night Massacre" in which he was the third occupant of the office of Attorney General because he alone was willing to back then-President Nixon's position on executive privilege, cost him support. Bork's 1987 claim that he construed the law and the Constitution in each of these areas and did not argue his personal beliefs is belied by his use of emotive language and in many areas his subsequent insistence that his views are not merely constitutionally imperative but morally so. See Slouching Toward Gomorrah (1996) and his contributions to A Country I Do Not Recognize: The Legal Assault On American Values (2005).

I point all of these out because the notion that Robert Bork fell because of his conservatism distorts the history in a manner that suggests that mere political disagreement is enough to torpedo a judicial nomination. In fact, Judge Bork's interpretations of the Constitution were not merely substantively "out of the mainstream"; they were not supported by the very values that he claimed mandated them, and they would erase centuries of constitutional law in favor of a broad power to the Government over what Americans thought and did in their private lives, in the name of morality.
I stand by that analysis; I think the Senate did its job in 1987, and that Nocera failed to do his this week

No comments: