<< What Happens When We Don't Use the DP? | Main | The Astounding Success of the Criminal Justice System >>

Confirmation Nastiness, Part II


Kent noted that confirmation nastiness has spread outside Washington, DC.  But it certainly had its origin there.  The origin, specifically, was the Ted Kennedy-led, gutter-level attack on Robert Bork.

Twenty four years ago tomorrow, Bork was voted down simply because he was a conservative.  He was, however, superbly qualified for the Court.  He was a law professor at Yale, a  former Solicitor General, and a judge on the US Court of Appeals for the DC Circuit.  It was to prove to be a preview of the even more appalling "high tech lynching" of Clarence Thomas  --  although, quite fortunately, that one failed.

The New York Times, of all things, has an op-ed spelling out, in straightforward terms, just how ruthless and unprincipled the attack on Bork was.  If a Republican wins the Presidency next year, and there is a Supreme Court vacany during his term, the scandalous nature of the attack on Bork is, I fear, something we will all have to remember  --  and be prepared to fight.


Ted Kennedy was about as loathesome a creature as has been a part of our political scene in quite some time.

Did the authors of this blog think blocking Goodwin Liu was a good idea? I can't recall?





And of course, the obstruction of judicial nominees by the GOP in this administration has been far worse than anything Bush faced in his first term, notwithstanding the fact that the Democrats had more Senators than the GOP has now:

"About 87 percent of Bush's appointees to the bench were confirmed in his first term. Obama's confirmation rate for nominees currently hovers around 62 percent, including nominees who were recently submitted to the Senate, according to the White House."


Uncontroversial judicial nominees (and non judicial nominees) hang around for months and years now without confirmation, because of GOP insistence on filibustering everything in sight. So perhaps you'll forgive this liberal for finding conservative handwringing over the defeat of Robert Bork 24 years ago, by a vote of 58 to 42 (including six Republican Senators) a little grating.

But perhaps, to quote Emerson, consistency is the hobgoblin of little minds, at least when partisan differences are concerned.

I thought it was "a foolish consistency."

It's a classic liberal tactic to change the subject. The subject of this entry is the gutter-level attack on Robert Bork. If you're proud of it, come right on out and say so.

Did you even read the NYT piece? Do you care to?

Goodwin Liu is off topic, but I'll answer anyway. Liu is an extremist academic from the home of legal deconstructionism itself, Berkeley. He has not a lick of judicial experince, unlike Bork. He barely has litigating experience, unlike Bork. He had never held a government position, much less the prestigious position of Solicitor General, unlike Bork. He launched a smarmy, personal and false attack on a prior nominee (Alito) so low-grade he was forced to retract it -- again unlike Bork. And he got the nomination in part for "diversity" reasons, unlike Bork.

Other than that, they're identical.

The real reason you want to avoid the shabby tactics your pals used against Bork is that you can't defend them, so you pick out something else and go on offense.

I'm surprised you didn't get to Clarence Thomas and the pubic hair on the Coke can. On the other hand, maybe you're not finished.

P.S. What you find "grating" does not control what I write on this blog. Is that clear?

The question Bork's nomination raised is whether there are ideological limits for lifetime judicial nominations. In Bork's nomination, Ed Meese and the Reagan Justice Department decided to push the envelope, nominating an individual who had described the Civil Rights Act of 1964 as embodying "a principle of unsurpassed ugliness", who believed that the Equal Protection Clause did not prevent gender discrimination, that states may criminalize the use of contraception and that the First Amendment does not protect any speech other than political speech. Views like these, and Bork's rather bloodless and aloof description of the prospect of serving on the court as "an intellectual feast" proved too much not just for Ted Kennedy and all but two Democratic Senators, but for Republican Senators Warner, Packwood, Stafford, Weicker, Chafee and Spector.

Finding clueless, pandering Republicans is the easiest job in this town, then and now. I wouldn't take too much pride in doing so. (Chafee and Specter, incidentally, were only posing even as nominal Repbulicans, a fact they would later be honest enough to reveal. Why aren't you?)

Your summary of Bork's positions looks like it was taken off the Occupy Wall Street mimeograph machine (I guess I should say the SDS mimeograph machine, paying due homage to the OWS progenitor). It's quite true that Bork was a conservative. But he was not the conservative freak you describe. Conservative freaks don't get on the Yale law faculty, they don't get confrimed to be Solicitor General, and they don't get confirmed to be Circuit judges either.

But most glaringly, you STILL avoid any mention of the TACTICS used against Bork, namely the personal demonization that is the basic point of the NYT article you again don't mention.

You leftists started this method of attacking judicial nominees, and continued in an even more disgraceful form against Clarence Thomas. As you full well know but won't admit, the sex-based attacks on Thomas took root in the racist assumption -- which your side understandably refused to acknowledge even while milking it for all it was worth -- that black men have wild, uncontrolled sexual appetites. That was the thinly veiled subtext of the attack on Thomas, and you know that too. Is there something lower available?

Meanwhile, while you people began this scorched earth approach, you wail every time Repblicans so much as question the latest radical Obama wants to put on the bench, such as the lunatic who, as a trial judge, was adamant that sexual sadism was a MITIGATING factor in sentencing.

Bottom line: Leftists are entitled to lauch classless, distorted and racist attacks on Republican nominees, but Democratic nominees, no matter how far out (like Liu) are immune from criticism.

decency--perhaps you ought to find a better example than Goodwin Liu. GIven the line of attack he advocated against Justice Alito, there can be scarcely any complaint about his treatment in the Senate.

"Did the authors of this blog...."

Each author speaks for himself. This post is by Bill Otis, and the four you link to are all by me.

Sheesh. How many times do we have to say this?

So you find Bork's views freakish? Well, the views I attributed to him are certainly accurate:


I'm not sure I would go that far, but they certainly were extreme, and this concerned members of the Senate, during his confirmation hearings. Senator Robert Packwood opposed his nomination based on Bork's criticism of Skinner v. Oklahoma (prohibiting forced sterilization of convicts) and Griswold v. Connecticut (striking down law criminalizing contraception.


It's hardly surprising that Ted Kennedy, the brother of two of the men most responsible for the Civil Rights Act of 1964, would view Bork's nomination with hostility.

As for the idea that Bork can't have been an extremist because he taught at Yale. Really?
Duncan Kennedy taught at Harvard Law School, and described himself "as a kind of anarcho-Marxist modernist", which seems appropriate given the vapid Critical Legal Studies movement he trumpeted.

As for Clarence Thomas and Anita Hill, if what she said is true, should he have been confirmed? I know you think it's not, but sadly, if it is true, we have a Justice on the court who engaged in egregious sexual harrassment while running the EEOC.

As for Goodwin Liu, perhaps Kent was right to oppose his nomination on ideological grounds, but if that is correct, can you really complain about the Senate vote defeating Bork? At least Bork got an up or down vote. Liu, and for that matter, Miguel Estrada, who is closer to your hearts, did not.

And of course things have gotten much worse since then, with 31 judicial emergencies, and the GOP blocking even non-controversial district court nominees for long periods of time. The federal judiciary, including Chief Justice Roberts, has been begging the Senate to act, with little effect. So if President Romney takes office in January 2013, don't get all surprised and upset when the Democrats in the Senate offer some payback of their own. Mitch McConnell's complaints, as Senate Majority or Minority Leader, are likely to fall on deaf ears.

"... who believed that the Equal Protection Clause did not prevent gender discrimination..."

Read section 2 of the amendment (and note the repeated use of the word "male"), which makes plain that that Bork was right.

Leave a comment

Monthly Archives