Was Borking Bork Right?

Ed Brayton, writing at Dispatches from the Culture Wars, is of the decided opinion that it was a good thing that Mr Bork’s reputation was besmirched by the Judicial Committee. That opening up Pandora’s Box with respect to how nominee’s are treated laying the groundwork for today’s current mood of filibuster, attack, and fight. He writes:

I certainly won’t defend every statement made by those in the Senate who advocated against him, but the truth still remains that Bork truly does have views far outside the mainstream and if his views were to become precedent, America would be far less free than it is today. … and (snip) …Far from being a martyr, the truth is that we should each be thankful every day that Bork was rejected for the nation’s highest court. It was a bullet we just barely dodged.

So, in this case, Mr Brayton argues first that the ends do indeed justify the means, that using extra-Constitutional means to destroy the reputation of man is worthwhile if he might be put in a position of power, while not holding “mainstream” views.

I would ask Mr Brayton in turn the following questions:

  • It has been pointed out that public writings by jurists do not always track with their court rulings, as in courts they are constrained by law and stare decis but in public opinion pieces there is no such constraint. Is there any actual proof that Mr Bork would ignore such matters if he was approved. Perhaps he could point out why he feels that way based on Mr Bork’s prior opinions in the court on record?
  • He thinks we dodged a bullet by not nominating Mr Bork. However, Justice Thomas was nominated in Mr Bork’s place. On how many decisions does he truly think that Thomas and Bork would have greatly differed? Of course if the number is not substational then we have not indeed doged any bullets and those who “Borked” Mr Bork wrought great havoc on the process for no gain.
  • Was the usurpation of the nomination process by the Senate either effective or worth the damage it has subsequently caused to the nomination and approval process? Mr Hamilton warned in Federalist #76 that exactly what is happening would occur if the nomination process was done by select committee. He wrote (prophetically) that:

    Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly.

    That is a fair description of the mounting conflict. It is our inheritance from our treatment of Mr Bork. For when the committee takes upon itself to examine more than whether the nomination itself was motivated by improper connections between the Executive and the nominee, i.e., his politics, idealogy, or stance on given issues, then that committe is repeating what really is part of the nomination process. Does he truly think this change was worth it?

  • How does he now suggest we return the process to sanity?

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One comment

  1. Ed Brayton says:

    I find your assertion that I am of the opinion that “using extra-Constitutional means to destroy the reputation of man is worthwhile if he might be put in a position of power” to be highly offensive. I said nothing of the sort. The rest of this absurd post has been answered on my blog.