Thursday, December 20, 2012

Bork Redux

Robert Bork has died. This is an old blog about this accomplished man done wrong by his government and its leaders.

Gingrich, Bork and Manning the Backroom Barricades
Gingrich is just another politician. What puts me off about him is his practiced sincerity. But Barney Frank's accusation of his being responsible for the acrimony in Washington because of his combativeness with the Clinton administration really deserves a lot of assessment and criticism.

Much of the integrity in politics has the sincerity of a television preacher or the World Wrestling Federation. Entertainment and survival trumps philosophy. Lingering in the background of all these political moments is the suspicion that none of these people are very good at leadership and legislation but are very good at politics and the intricacies of government. One wonders if they all were displaced for new blood what would happen. Would all the office staffs be retained because no one can do without them? Would the new people even know how to get anything done, even know who to call?

So the machinery of Washington seems a mixture of hardwired mechanics and the sorcerer's apprentice. Political philosophy from any of these people seems a bit much to ask. And such demands may be inappropriate for politics. Churchill himself was not a particularly consistent politician but he was a focused and consistent leader regardless of the times. Lincoln, a truly great man in my eyes, has been criticized for his slowness in freeing the slaves as weak and uncommitted when I believe he was demanding sequentially only what the country could bear.

The rancor in Washington certainly was evident with Gingrich's success in 1994 but I wonder at its source; the Democrats had always had their way and I doubt the change was easy for them. But anyone who thinks that the struggles of that administration initiated rancor in Washington is not remembering the single seminal moment of domestic politics in my lifetime, the domestic counterpart of the foreign adventure in Viet Nam, a moment that made me reassess the entire American political process. Bork.

Robert Bork graduated Phi Beta Kappa in law, was a U.S. Marine, became a lawyer and eventually specialized in anti-trust where he developed a unique notion that emphasized maximizing consumer welfare which, over time, became the dominate thinking in antitrust matters in America. He became Solicitor General and, during the "Saturday Night Massacre," when Nixon tried to fire Special Prosecutor Archibald Cox for trying to examine the Oval Office tapes of president conversations, U.S. Attorney Elliot Richardson and Deputy Attorney General William Ruckelhaus both resigned in protest and Bork became Acting Attorney General. He planned to resign as well but Richardson and Ruckelshaus persuaded him to stay on to maintain the Justice Department's continuity and Bork fired Cox. He then became a judge for the U.S. Court of Appeals for the District of Columbia Circuit. There he developed a reputation as a constitutional scholar in his efforts to deal with the judicial problem of making law without popular approval advocating "originalism", guiding decisions based on the understanding of the framers' original understanding of the U.S. Constitution. Bork said, "The truth is that a judge who looks outside the Constitution always looks inside himself and nowhere else." He built on the Alexander Bickel's influential critiques of the Warren Court for poor reasoning, activism and misuse of historical materials. Bork said, "We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own." His reputation grew and, before long, he was the most highly regarded judge in the American judiciary. In 1987 Reagan nominated him to the Supreme Court.

No one who knew anything about Bork or law felt that he was anything but a significant legal scholar of the highest integrity. One may not agree with him but everyone recognized that he was eminently qualified to be on the Supreme Court, perhaps more than all but a few past judges. But quality was and would not be the point. Bork did not follow the current in Washington and would be challenged, not by reason or argument but by a monumental smear campaign, aided and abetted by the press. The leader of this unconscionable attack on this distinguished man amazingly was one of politics most disreputable characters, Sen. Edward Kennedy, a man devoid of redeeming values. In a speech that will be remembered as a nadir of political behavior he cried " 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 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 for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy ... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice." So a private citizen, respected and accomplished, is savagely attacked by his own government representatives.

The Senate did not rise above this mockery. Bork was voted down and his name became a word used to describe vicious and ad hominid attacks with the help of the media to destroy the reputation of an individual and eliminate him from political contention. This event had more of an impact than any other political incident in the 1980's and the image of politicians and Washington has been irrevocably stained in many minds since. The ersatz attack on Clarence Thomas later--no less inspired but peculiar and creepy--tried to be the 1990's equivalent of political disillusion but was easily displaced by the Clinton circus later in the decade.

Gingrich is no innocent but he is innocent of this.

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