- - Sunday, March 20, 2016

ANALYSIS/OPINION:

Robert Bork was a renowned legal scholar who, despite having been a Yale Law School professor, U.S. solicitor general, an acting attorney general, and a justice of the U.S. Court of Appeals for the District of Columbia Circuit, never made it to the U.S. Supreme Court. He should have and President Ronald Reagan tried to put him there. But he did give his name to the verb, “to bork,” describing how a nominee can be defeated for purely personal political reasons. The angry controversy over the Bork nomination has echoes today, but the circumstances of the nomination of Merrick Garland are very different, and Mr. Garland is not subject to borking.

Bork, who died at 85 in 2012, was in his day the foremost advocate of the legal doctrine of “originalism” — an interpretation of the Constitution that assumes that the words of the Constitution were fixed when it was first, or originally, adopted. Originalists hold that the meaning of the Constitution can only be changed by amendment, as set out in Article 5 of the document. Bork saw this as the only way to prevent judges from writing new law from the bench; laws could only be written by legislative bodies. Originalism is sometimes confused with another doctrine, textualism, which holds that the meaning of the law cannot be interpreted as beyond its actual language. Justice Antonin Scalia regarded himself as a textualist.

None of his tormentors questioned either the legal credentials of Bork, who with his beard and stern visage had the appearance of an Old Testament prophet, or his scholarship. But within an hour after President Reagan announced the nomination, the late Sen. Ted Kennedy set the mean-spirited tone of the opposition in the Senate, then controlled by Democrats, in a nationally televised speech all but unique for its anger and vitriol. “Robert Bork’s America,” Mr. Kennedy said, “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 citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”

Nominees have been controversial throughout the nation’s history, but the Bork nomination departed from previous nominations and wrote a new definition of partisanship. Feminists and abortionists demanded a bloody head. Bork was rejected by the Judiciary Committee by a vote of 9 to 5, and the nomination was dead. He nevertheless insisted on a vote by the full Senate. “In deciding on this course,” he said, “I harbor no illusions. But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees. For the sake of the federal judiciary and the American people, that must not happen. The deliberative process must be restored.” The Senate rejected his confirmation by a party-line vote of 58 to 42.

The Garland nomination is by all accounts dead, too, not because a majority of senators oppose him personally, but because Republicans announced before President Obama nominated him that they would not consider any nomination this year. The new president, to be elected in November, will nominate a successor to Justice Scalia. But the ghost of Robert Bork prowls through the Senate to this day.

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