The conservative lament that Robert Bork was treated unfairly in his nomination to the Supreme does have some validity. Liberals did launch an intensive campaign against the nomination. This campaign may have seemed unprecedented to some, but it did have seeds in previous nominations. It was not unusual before the twentieth century for the Senate to reject Supreme Court nominees. A nominee was turned down as early as 1797, and one in four nominees was rejected in the nineteenth century.

In the first half of the twentieth century unsuccessful campaigns were mounted against nominees Louis Brandeis and Thurgood Marshall. On the other hand, the 1930 opposition to John J. Parker portraying him as a racist and anti-union was successful. However, the reaction to these nominees did not produce the frenzy that would later be seen with Bork. Nevertheless, that frenzy had roots going back to President Johnson’s nomination of Abe Fortas, then an Associate Justice of the Supreme Court, to Chief Justice. There were legitimate issues about Fortas, but the opposition went beyond them. Bronner, after discussing the Fortas controversy, concludes that it was “plagued by partisan politics, ideology, character concerns, and closeness to LBJ.” As partisans often do, some looked for the opportunity to respond, and that came with President Nixon’s nomination of Clement Haynsworth to the Supreme Court. (You can look him up, and G. Harrold Carswell, too.)

The Bork nomination, then, was not the only time partisanship took the stage with a Supreme Court nomination. But the Bork controversy was unprecedented in the media campaign mounted against him. Press and TV ads were not used against other nominees as they were against Bork, and as we see in political advertising today, much that was said so grossly oversimplified Bork’s views that the content was unfair.

Such attacks, however, did not start in the media, but with Senator Ted Kennedy, who on the Senate floor, said, “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 doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

The conservative outrage over this attack increased with an ad by the People for the American Way featuring Gregory Peck. A family gazed at the slogan “Equal Justice Under Law” chiseled on the Supreme Court building while Peck on the sound track, as Bronner summarizes it, “accused Bork of opposing civil rights, privacy, and much free speech protection.” Peck continued, “Robert Bork could have the last word on your rights as citizens, but the Senate has the last word on him. Please urge your senators to vote against the Bork nomination, because if Robert Bork wins a seat on the Supreme Court, it will be for life—his life and yours.”

The ad may have been powerful, but it was aired little and probably would have drawn minimal attention. Then a White House spokesman attacked it, and the ad got widespread notice as it was played again and again on news programs, which brought more examination of Bork’s positions. Many came to think that the ad was not really unfair, for Bork had opposed civil rights laws and Supreme Court privacy decisions, and he had announced a position that would drastically limit free speech.

The borked view of history fixates on Kennedy’s speech and sees only partisanship. It cites the Gregory Peck ad and sees simplistic, inflammatory summaries of what Bork believed. It dwells on irrelevancies that come up, such as discussion of his beard and what movies he had rented. But that history ignores Bork’s actual views and how they were explored at some depth by many noted lawyers and scholars before the confirmation vote and at the five days of the Senate hearing, which was akin to a constitutional law seminar exploring Bork’s views. The confirmation process, in fact, was filled with substance. It provided good reasons why Robert Bork should not have been on the Supreme Court.

(Continued on September 7)

RELATED POST: https://ameliasdad.blog/?s=originalism

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