Search This Blog


Thursday, December 20, 2012


Before the 1980s, Republicans tended to identify themselves as the serious realists who were wiling to make unpopular, hard choices and who cared too much about ideas and rational argument to be distracted by bright, shiny objects. For many years, every Republican's favorite teachable moment from recent history was the story about how people who listened to the Kennedy-Nixon debate on the radio, instead of watching it on TV thought Nixon was the clear winner. This was supposed to prove that Kennedy was perceived as the winner by TV viewers only because they were indifferent to the substance of the arguments and just tuned in to bask in Big John's well-tanned charisma. (I think it was Louis Menand who finally offered the counter-argument that Nixon's positions just sounded better to the kind of person who, as late as 1960, didn't have a TV.)

That all changed when Republicans found themselves in possession of a White House standard-bearer who was considered beloved and bullet-proof because he knew how to work it on television. But in 1987, things weren't going so well for Ronald Reagan. The Iran-Contra scandal had broken, his approval ratings were down, and Reagan, as we now know, was so confused and embarrassed by this that, after his first attempts to explain it all away didn't go as hoped, he simply disappeared from the public eye for a long stretch of time, rather than subject the American public to the sight of him looking red-eyed and pouty. But things started looking up during the Iran-Contra hearings, when Oliver North's televised appearance caught the public's fancy. By the weekend, any talk that Reagan's presidency had been imperiled or even seriously tarnished dried up, and people like Robert Novak started going on TV to proclaim that North had "cleaned the clock" of the Senate investigators.

How had he done this? By making a devastating case for the rightness of his actions, one that turned public opinion around on the issue of secretly funding the Nicaraguan Contras? No; basically, North threw Reagan under the bus, while simultaneously boasting about his willingness to take whatever punishment he had coming to him for having broken the law and waving his immunity deal around. And there was no more support for American intervention in Nicaragua after he shut his mouth than there had been before. But people seemed to like his TV image more than they did the Senators', and that, according to the new rules that Republicans had wholeheartedly endorsed, meant that he and his side had "won." A few months later, when Reagan nominated Robert Bork to the Supreme Court, and Democrats and civil rights and women's groups, as well as the ACLU, expressed their determination to shoot it down, there was a little electric current running through the conservative media. Bork was urged to get onto TV and dazzle the electorate with his wit, wisdom, and sparkling personality. It would be like Oliver North all over again, but with quotes in Latin in place of the fruit salad.

Writing in Slate yesterday on the occasion of Bork's death, David Weigel noted that "in hindsight, what happened to Bork"--his nomination was, of course, voted down, with six Republicans chiming in against him--"was unprecedented, and unfair." Republicans were furious at the time, but I remember thinking that a lot of their fury had to do with the fact that they'd convinced themselves that for TV to do one of their own more harm than good was an impossible violation of nature. (By the time Reagan left office, they'd convinced themselves that it was a violation of nature for a presidential election to not go their way, and so both Democrats elected President since then have had to start their terms listening to screaming about the "illegitimacy" and tyrannical nature of their reign.) Bork went down partly because the views he'd expressed over the course of his career, but I don't think the Democrats woudl have been able to deny Reagan the appointment he wanted if Bork himself hadn't gone on TV and looked and sounded like an arrogant ogre, exactly the sort of person you'd imagine would deny gays protection from harassment because he did not recognize a right to privacy and who would believe that the Civil Rights Act of 1964 was based on "a principle of unsurpassed ugliness," which would appear to mean that the idea of black people's right to vote being accorded legal protection was more stomach-churning than his beard. Republicans soon settled down and elected to remember Bork as a martyr, the greatest Supreme Court justice that never happened. But at the time, the mood was accurately reflected by a Saturday Night Live sketch in which Reagan (Phil Hartman), angry that the charmless, despised judge declined the chance to spare the White House a shaming defeat by simply withdrawing his name from consideration, beat him to death with a baseball bat, a la Robert De Niro's Al Capone in The Untouchables.

Bork didn't deserve to be pilloried and publicly humiliated for being untelegenic, any more than North deserved forgiveness and a book deal for it. But is it really so bad that he was denied a lifelong appointment to the highest court in the land for what was known about his views on the most important issues of the day? The scar that doesn't heal in Bork's case is supposed to be the line delivered by the monster from Massachusetts, Ted Kennedy, about how

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

Intemperately put, I suppose. But if you're aware that, before Roe v. Wade, women were forced into back-alley abortions, I don't know why you'd think that overturning Roe v. Wade wouldn't bring that back. Similarly, if you have a problem with using the courts to end racial discrimination, it doesn't seem that much of a leap to assume that segregated lunch counters is a price you're willing to pay for your precious "originalism." One more piece of context: the year before, the famously silly Chief Justice Warren Burger had stepped down from the Court in order to focus on what he imagined would be his great legacy, overseeing the national celebrations of the bicentennial of the U. S. Constitution--how'd that work out for ya?--and Reagan had offered William Rehnquist as his replacement.  Rehnquist, who had been on the Court since 1971, once wrote a memo defending legal segregation, in which he argued that

To the argument ... that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minority are.

In his confirmation hearings, Rehnquist chose to shit on the memory of Justice Robert Jackson, insisting that, for reasons unknown, he had actually written the memo in an attempt to described what he assumed Jackson probably thought. During the 1986 hearings, it also came up that as an enthusiastic young participant in the democratic process, it had been Rehnquist's habit to hang out at polling places and intimidate blacks who threatened to try to vote. It seems safe to say that Rehnquist was on the same level as anyone else who ever had any role in trying to maintain some kind of legal dividing line between people based on skin color--which is to say that he was an excremental stain passing as a human being, garbage wrapped in skin. But there was no real possibility that, in 1986, having been obscenely wrong about the most obviously clear-cut moral issue of his lifetime was going to keep him from getting a promotion when he'd already been on the Court for 15 years--not a time when unrepentant, known racists like Jesse Helms and Strom Thurmond were powerful Senators, and the President himself had used the occasion of the signing of the bill declaring Martin Luther King's birthday a national holiday to imply that he himself wasn't convinced that King hadn't been a Soviet agent. Bork was just as wrong on that hard-to-be-wrong-about issue, and had been Nixon's butt-boy at the Saturday Night Massacre to boot. Republicans may see Bork getting his own words read back to him in a less-than-respectful tone as an unprecedented outrage. But unless you're obtuse about racial justice and have never heard of karma, it's easy to see how Kennedy and some of the other people who'd been unable to put a dent in Rehnquist's imperial armor might have felt that it was high time to lay down the law about a few things.

Of course, the people who see Bork as a martyr don't feel that way. In fact, their historical memory doesn't extend to 1964, which must be why they're unaware that plenty of other Supreme Court nominees, from Abe Fortas to G. Harrold Carswell, got shot down because they were racist, ethically compromised, or someone just didn't like the cut of their jib. Writing in The New RepublicJeffrey Rosen sees karma flowing the other way, and argues that, by daring to find fault with Bork's views, Kennedy and the other inquisitors were responsible for "the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. it led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking." For backup, Rosen cites actual sane person Joe Nocera, who a year ago wrote a New York Times op-ed piece claiming that the "Bork fight, in some ways, was the beginning of the end of civil discourse in politics."

I assume that Nocera is referring here to such phenomena as the Whitewater hoax, the Wall Street Journal op-eds accusing Bill Clinton of literal murder, Michele Malkin suggesting that it was up to John Kerry to prove that he hadn't faked the wounds he suffered while fighting for his country in Vietnam, the birther movement, etc. (You can throw the Bush-era Truthers in there too, if you want to be all bipartisan about it.) You may notice that all these things are 100% bullshit that some scumbag pulled out of his ass, while the attacks on Bork were related to his actual record, even if Nocera and Rosen think they were so exaggerated that it's okay to now pretend they were based on nothing at all. Nocera argues that it was wrong for anyone to pretend that Bork was some kind of radical conservative who was out of step with mainstream America on abortion and civil rights, because, well, other justices shared his feeling that it was wrong to take the legality of abortion away from the politicians and decide it through a court case. Yes, and those who were in step with mainstream America still saw Roe v. Wade as the law of the land and weren't itching to overturn it; even Rehnquist made his peace with things he'd disagreed with, in that regard. Bork came across as someone who never made his peace with anything he disagreed with, and neither that nor his choice of opinions were Ted Kennedy's fault.

I suspect that Nocera's piece, which was written at a time in very recent history when a number of thoughtful, liberal-minded people were beginning to feel that we all needed to make nice with the Tea Party so that, in a year's time, President Rick Perry would be forgiving towards us, is an attempt to split up the blame for the shit hole our public discourse has become, because thoughtful, liberal-minded people have some deranged notion that people with 'WHERE'S THE BIRTH CERTIFICATE!?" buttons on their lapels will come to their senses if liberals just say to them, "Hey--mistakes have been made on both sides." The oddest thing about both his and Rosen's articles are their tender regard for the damage down to Bork himself. Not just his career, but his soul psyche and brain. After being rejected by the Senate, Bork became a professional right-wing crybaby, celebrating his own martyrdom, and putting out a series of cranky books in which he bewailed the destruction of America and Western civilization itself, at the hands of a bunch of liberal Commie weirdos who arrived here via spaceship sometime in the 1960s. There's not a sentence in any of them that Ann Coulter wouldn't be proud to call her own.

You might see his post-nomination career as proof that Bork was  a man best not left with his hand on the lever of history. But as Rosen sees it, it was not making it to the Supreme Court that turned Bork into "an angry partisan, determined to seek ideological revenge for years to come." Actually, that's his description of Clarence Thomas, but he seems to think that it applies to both men. (What happened to Thomas--who was chosen, post-Bork, precisely because he was the very definition of a "less intellectually adventurous nominee" with no paper trail, bears no resemblance at all to what happened to Bork, but let it pass. I'm more curious to know, if he thinks that liberal Dr. Frankensteins are responsible for the "transformation" of these guys, how did Antonin Scalia, who sailed through his confirmation hearings, get that way? Did Nina Totenberg step on his foot or something?) 

After electoral defeat, Jimmy Carter and Al Gore threw themselves into good causes close to their hearts; Bill Clinton seems to have bounced back from that whole impeachment thing pretty well. If Bork and Thomas were really good-humored, non-ideological wits and deep thinkers who turned into gargoyles, does that really say more about the toxic nature of the attacks made against them than it does about the people they always were, on some level? Both Rosen and Nocera talk a good game about Bork's staggering intellectuality, which, they basically admit, he never shared with the public; after his nomination was rejected, he quit his job in a huff and devoted the rest of his life to writing bad books and giving snotty speeches. No doubt we're supposed to be consumed with regret for what we missed out on, but it's our fault: we failed to appreciate Bork when we had the chance, so he had no choice but to take his big ol' fucking brain and go home. Oliver North, meanwhile, was so devoted to using his newfound celebrity to campaign for the things nearest and dearest to his heart that he wound up snagging a recurring role on JAG. Such is the afterlife of the Republican martyr.


Sherri said...

I wanted to know the same thing: if being denied the Supreme Court was the reason for Bork turning into a mean old man, what's Scalia's excuse?

Tehanu said...

What interests me is that neither Rehnquist nor Bork was a Southerner (R. from Wisconsin & B. from Pennsylvania) -- and yet they had retrograde racial attitudes that even Thurmond might have been uncomfortable with. I really wonder what their problem was.

Anonymous said...

Thank you Mr Nugent, this is a cogent, and appropriately vitriolic piece of writing as I've seen about Bork. In a better world, somebody'd be paying you Taibbi-level bucks to garner beaucoup adviews with it somewhere. But hey as long as rss still works I'll read whatever you have to say, whenever, so I am very glad that you do what you do here.

San Diego Discrimination Attorney said...

I would like to thank you for the efforts you have made in writing this article and i am hoping the same best work from you in the future as well.