Borking Bork Worked Out OK

The legend of Robert Bork’s martyrdom casts a shadow over the upcoming Supreme Court nomination, as it has over every nomination for the last 18 years. Bork, for those who somehow haven’t heard his tale of woe, was nominated in 1987 for the court, only to be defeated at the hands of a savage liberal attack painting him as an ultraconservative menace.

To this day, conservatives invoke the Bork nomination as a catalyzing event, one that made clear to them the full perfidy of the liberal establishment. They wave the bloody robe of Bork as justification for every hardball tactic, from impeachment to the “nuclear option” on filibusters, and vow never to let it happen again (at least not to them). Even some liberals are sheepish and apologetic about the Bork affair. Bork himself appeared on television recently to note, with evident satisfaction, that many dictionaries now define “Bork” as a verb, meaning “to attack with unfair means.”

The funny thing is that the memory of the campaign to demonize Bork as a right-wing nut has grown stronger even as the intervening years have shown quite clearly that Bork is, in fact, a right-wing nut.

The most famous hyperbolic charge against Bork -- one which has been invoked far more often against Bork’s accusers than it ever was against Bork -- was Sen. Ted Kennedy’s claim that “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters,” etc., etc.

This was far from the sort of fair summation of the totality of Bork’s legal philosophy that you might find at a law school seminar. But it wasn’t exactly false either. Bork had criticized the portion of the Civil Rights Act banning discrimination in public accommodations, argued against extending the equal protection of the 14th Amendment to women, took an extremely restrictive view of free speech, and so on. At the time of his nomination, Bork backed away from some of his most inflammatory writings, which made the accusations against him seem unfair. For instance, he reportedly told senators in his pre-confirmation talks that he was willing to reconsider whether there is a constitutional right to abortion.

In the years since his rejection, though, Bork -- freed from the shackles of Senate confirmation -- has given full bloom to his wingnuttery. He has raged that one Supreme Court decision comes “close to accepting foreign control of the American Constitution.” He has defended conservatives threatening budgetary reprisals against the judiciary, which even the right wing of the GOP has denounced.

Bork called President Clinton, among other things, a “sociopath,” and insisted that, “given power, the sociopath will display totalitarian tendencies. Clinton does.” He predicted that if Al Gore won the presidency “moral disapproval of homosexual conduct would be outlawed in any public and many private contexts.” (Apparently, Gore’s America is a land in which Rick Santorum and Tom Coburn would languish in prison, and no one could utter the word “homo” without fearing the knock of the police upon his door.) Even George W. Bush criticized Bork’s cultural hysteria in 1999 -- one of the few times Bush has distanced himself from a fellow conservative. As his nomination is now remembered, Bork lost only because of the viciousness of his opponents and the slow-footedness of his defenders. (Bork’s beard, which gave him a passing resemblance to Ming the Merciless, probably didn’t help either.) The truth is that although the attacks on him were over-simplistic, his rejection was the right outcome.

In many ways, the Bork debacle resembles the case of Alger Hiss, a State Department official whom conservatives accused in 1948 of spying for the Soviet Union. Liberals and leftists made Hiss a cause celebre. They saw the Hiss case as a perfect morality tale, in which the left played the role of the persecuted innocent, and Hiss’ accusers revealed their bottomless villainy. And though not every single charge against Hiss was perfectly fair, in time it was shown beyond all dispute that Hiss was a Soviet spy. You might say that the prosecution of Alger Hiss was the original Borking.