Borking the Nation in 1987

I "met" the late Robert Bork 20 years ago on an airplane.

He was flying, as was I, from somewhere to somewhere else, and was seated in the front of the plane as I was walking past him to my seat.  As this was only a few years past his 1987 nomination to the Supreme Court, and he was quite recognizable, I leaned over quickly as I walked by and said something like "Don't let those illegitimate sons of desert camels get you down", or something like that.

Or maybe I just said "Hi."  I really don't remember, and Judge Bork is gone now, so it really does not matter at this point.

I mention that because Bork is an incredibly important figure in the history of our nation, more so than a surprising number of people you may think of, and distinctly more important than probably most of the actual justices who did serve on the Court.  He is important, though, not for anything that he did but, rather, what was done to him.

It seems only a few years ago, but it was actually 30, when President Reagan nominated Judge Bork to be an associate justice of the Supreme Court.  Judge Bork was clearly as qualified, or more, than a number of the people who have actually become justices since that time.  A brilliant jurist and constitutional scholar, Bork's nomination seemed a no-brainer at the rime.

For many, myself included, the hearings on Judge Bork by the Senate were the first televised Senate hearings we had actually paid attention to.  Ever.  Unfortunately, though, they were an utter embarrassment to the Senate and to the Federal government in general.

And that embarrassment continues to this day.

You see, Bork's nomination was the first time that the "advise and consent" clause in the Constitution was visibly used, in this case by the Democrats, in a manner such as to ignore qualifications of a judge (or, since, a Cabinet secretary) in favor of political considerations.  Not "What is your opinion of the intent of the Thirteenth Amendment", but "Would you vote to overturn Roe v. Wade?"

And, of course, ever since that hearing, it has become OK for senators to vote on justice candidates based on something other than their actual qualifications to serve on the Court, their understanding of the Constitution, their grasp of the intent of the Framers in writing it.

Since Judge Bork's nomination was killed by the Democrats, a Pandora's box has opened.  And that is specifically why he is the historic figure he is now, and why since the Democrats' despicable treatment of him, to be denied an appointed position in government because of politics rather than ability, is to have been "Borked."

Up to that point, with minor exceptions I can't recall now, a qualified candidate for the Supreme Court would be voted on based on competence.  It was assumed that the presidents making nominations would select candidates for the Court who shared their view of the law.  They often got surprised (I'm looking at you, Justice Souter), but there was plenty of leeway and deference to the president's wishes.

That all ended in 1987.  The Democrats in the Senate hit the button on their 1987 version of the "nuclear option" and denied Judge Bork the appointed seat.

They couldn't possibly oppose Judge Bork on his qualifications.  An accomplished legal career included terms as Solicitor General during the Nixon administration after years of private practice and finally a long period as a circuit court judge.  He was a prolific writer with some seriously argued opinions relative to the role of the Federal government and a particularly conservative view in that area. And he certainly knew the Constitution.

Robert Bork was immensely qualified, which makes his rejection so historical.  Senators like Ted Kennedy and Joe Biden gave speeches opposing him that were so full of misrepresentations and untruths that Bork had to make statements like the one after Kennedy's speech, stating "Not one line in that speech was accurate."  Typical.

Thirty years later, it has become the norm for presidential appointees to be evaluated on their politics rather than their competence.  Robert Bork was immensely capable of being a Supreme Court justice, and everyone, including Ted Kennedy and Joe Biden knew it.

But Democrats are not known for relating history and its impacts to the needs of the liberal today, or even the impact on tomorrow.  They didn't think of the fact that to change the traditional evaluation based on competence, that preceded Bork, meant that their own candidates were going to be subject to political opinion going forward.  Not as much, of course, since Republicans are reasonable people who believe that a president had a right to appoint justices who agreed with their opinions on thing.

And the Democrats did not care that they were setting a precedent that was truly harmful to the nation (and would later cost them the nomination of Merrick Garland).  But that's what we have now.  We have Democrat senators simply staying away from committee hearings on President Trump's Cabinet appointees like a bunch of spoiled children, without concern about how they look.

We have Democrat senators declaring that they're not going to vote for the president's Supreme Court nominee, even before the nominee was named ("I don't know whom you're going to nominate, but I'm not voting for him").  In other words, their vote is solely a political step with no regard for the process or for historic precedent, at least before the first Borking.

This needs to stop.  Barack Obama made two nominations to the Court (well, three, but one did not get voted on), and in both cases enough Republicans took the "advising and consenting" role seriously enough to agree on their qualifications.  Plenty of Republicans voted for Obama's nominees.  Will the Democrats predominantly take that position with the newly nominated Neil Gorsuch?

We absolutely have to go back to the pre Borkian approach to the Senate's role.  If nominees are qualified, it is not for the Senate to vote them down on solely political grounds,  It is their role to validate those qualifications, not to apply criteria that do not really apply.

I pray that the Gorsuch appointment is handled with the dignity the office and the man deserve.

That doesn't mean that a Senate with Chuck Schumer and Elizabeth Warren will care.

Copyright 2017 by Robert Sutton
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