Commentary

Behind the Smears

Here’s something you may not know about the 1987 battle that kept Robert Bork off the Supreme Court: Opponents pursued a whispering campaign against him on the grounds that he wasn’t enough of a religious believer.

Back then, many Democrats still held seats in the rural South, and the religion angle gave them an easier way to explain their stance to constituents than, We’ve been asked to oppose him as a party-line matter.

Thus Rep. John Bryant (D-Texas) warned that Bork was “an agnostic who is not a member of any church.”

And Sen. Bennett Johnston (D-La.), while disclaiming any “religious test for judges,” advised “fundamental religious people” back home to “look, in addition to what he has written, at [Bork’s] statements on morals or lack thereof — and I don’t mean to suggest he is immoral — but his lack of occupation with morals and with religion.”

Never in memory had a judicial nomination been fought in such language. Why?”

Sen. Howell Heflin (D-Ala.) told constituents he was “disturbed by [Bork’s] refusal to discuss his belief in God — or the lack thereof.” Heflin also alluded darkly to the nominee’s beard and “strange lifestyle” as a Yale law professor.

Judge Robert Bork died yesterday at 85, and as one of the smartest persons ever nominated to the high court — George Will called him ‘the most intellectually distinguished nominee since Felix Frankfurter’ — he was well situated to appreciate the many historical ironies.

One was that opponents like Heflin could exploit prejudice against him as a former Yale law professor and presumed Northeastern elitist. In fact his views were so far from his former colleagues’ that in later years he was to joke of seeing a bumper sticker that read, Save America. Close Yale Law School.

The religious angle adds another irony. Particularly after his defeat and retirement from the bench, Bork’s views drifted steadily rightward; in the wake of his best-selling 1997 book Slouching Toward Gomorrah, he became a favorite of “secularism is destroying America” culture warriors.

Of course the confirmation critique that makes it into every Bork obituary isn’t Heflin’s or Johnston’s. It’s Ted Kennedy’s blowhard caricature, intended for northern liberal consumption, of “Robert Bork’s America” as “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, school children could not be taught about evolution,” and so on.

Never in memory had a judicial nomination been fought in such language. Why?

As a constitutional law scholar, Bork had distinguished himself even among conservatives for his scathing critique of the Warren Court, which he accused essentially of having made up constitutional law as it went along.

To organized liberal groups, on whose behalf Kennedy was acting, this was the next thing to a declaration of war. Yet they couldn’t exactly come out and defend making up constitutional law as you went along as their own vision for the high court.

Instead, they served up a steady diet of vitriol and wild oversimplification, especially in TV ads and other messages delivered outside the confirmation hearings.

The Washington Post itself opposed Bork’s confirmation, yet nonetheless editorialized against the “intellectual vulgarization and personal savagery” to which some of his opponents had descended, “profoundly distorting the record and the nature of the man.”

Once “Borking” had been coined as a word and as a practice, it didn’t take long for nominees of both sides to pay the price. Some didn’t care to put themselves or their families through months of mudslinging.

Within a few years, presidents of both parties were taking care to pick nominees with schmoozy as opposed to prickly personalities — and willing to submit to coaching on how to give off that oh-so-important empathetic vibe without actually committing to anything.

Ideologically predictable though some of these folks might be, they lacked the intellectual heft and daring paper trail of a Richard Epstein on the right, a Cass Sunstein on the left or a Richard Posner somewhere in between.

Like many, I disagreed with plenty of Bork’s views, starting with his narrow view of the First Amendment (which he thought didn’t protect artistic expressions unrelated to political life) and the Ninth (which he memorably dismissed as a mere “inkblot”).

But with regard to the Warren Court, it’s looking as if he’ll have the last laugh. Obama’s high court nominees are just as eager as George W. Bush’s to decry the practice of making up the constitution as one goes along, while “liberal originalism,” which takes seriously the insistence of critics like Bork that judges must adhere to what’s actually in the founding document, is making headway among scholars at places like Yale Law School.

Not such a bad legacy.

Walter Olson is a senior fellow at the Cato Institute’s Center for Constitutional Studies.