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Friday, October 26, 2007
Jonah Goldberg :: Townhall.com Columnist
The Borking of American Politics
by Jonah Goldberg
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If you think American politics have gotten nastier, crueler and more symbolic over the last 20 years, blame Ted Kennedy.

This month marks the 20th anniversary of the borking of Judge Robert Bork, Ronald Reagan’s failed Supreme Court nominee. And it was Ted Kennedy’s bilious bugle blast that brought the man down. Almost immediately after Reagan nominated Bork, Kennedy pulled himself off his barstool and proclaimed:

“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 would be censored at the whim of the government ...”

Kennedy’s assault rallied left-wing interest groups to the anti-Bork banner for an unprecedented assault on a man liberal Supreme Court Justice Warren Berger dubbed the most qualified nominee he’d seen in his professional lifetime. As Gary McDowell noted recently in the Wall Street Journal, that time span included the careers of Benjamin Cardozo, Hugo Black and Felix Frankfurter.

Then-Judiciary Committee chairman Joseph Biden, Kennedy’s lieutenant in the assault, told the Philadelphia Inquirer not long before Bork was nominated: “Say the administration sends up Bork. I’d have to vote for him, and if the (liberal interest) groups tear me apart, that’s the medicine I’ll have to take.” But when it came time to take his medicine, he ran away like a Kennedy fleeing a car accident. The fact that Biden was about to run for president — for the first time — probably helped him rationalize his flight from honor.

By today’s standards, the slimy insinuations that Bork was a racist seem almost quaint. The investigations of his private life — Senate staffers pored over his video rental records in hope of finding something prurient — pale to the deepwater dredging of private lives today.

But that’s how precedents work. Small violations of principle tear the social fabric and the breach is pulled ever wider as more people march through the opening.

Ethan Bronner, author of “Battle for Justice: How the Bork Nomination Shook America,” recounts Reagan speechwriter Peggy Noonan’s response to the Kennedy speech. She acknowledged that the tirade was grotesquely unfair but that it “worked.” And, she continued, “The next time, the Right should answer in kind, matching tone for tone and blow for blow.”

The following year, George H.W. Bush ran a tough race against Michael Dukakis. The fact that a race against the Muppet-robot former governor of Massachusetts needed to be tough beggars the imagination today, but Bush actually started out 17 points behind Dukakis. Liberals thought Bush was too tough on poor Dukakis, who seemed to be doing much of the heavy lifting in his own destruction anyway, what with his disastrous tank ride and nonchalant response to the hypothetical rape and murder of his wife. Continued...

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About The Author
Jonah Goldberg is editor-at-large of National Review Online.
 
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reply to WRH Bill

If the Justices followed your logic, they would be unable to interpret the Constitution at all. Here's what you write:

"As I see it, when judges look at the First Amendment and decide that "freedom of speech and press" doesn't
include "pornography," "blasphemy", flag-burning as a political statement, or other things that the judges don't like, because they figure the Founders couldn't have possibly meant to protect such nasty stuff, that also is "activist judging" that goes beyond the words of the Constitution. "

It's precisely the fact that the Justices do need to figure out whether the things you mention are, or are not, protected by the Constitution, and on what grounds, that makes your position impossible. Conservatives sometimes fail to realize a crucial fact: There is NO part of the Constitution that establishes principles for the interpretation of the Constitution. Absolutely none. The Justices simply have to try to figure out what the language of the Constitution means, that is, the words don't speak for themselves.

On "freedom of speech:" What DID the Founders mean by this? Liberals and conservatives will disagree, but somebody has to say something in order to deal with actual court cases.

Response to BrianR
You really didn't read my original post very carefully, did you? You accuse me of being in favor of "Justices dreaming up new rights" when I quite explicitly said I did *not* favor that. I also said that I did not favor conservative activist judges ignoring the rights that *are* founding in the Constitution, any more than I favor liberal activist judges making up new rights that are not there.

As I see it, when judges look at the First Amendment and decide that "freedom of speech and press" doesn't include "pornography," "blasphemy", flag-burning as a political statement, or other things that the judges don't like, because they figure the Founders couldn't have possibly meant to protect such nasty stuff, that also is "activist judging" that goes beyond the words of the Constitution. Same when judges decide that Fourth, Fifth and Sixth Amendment rights can be ignored, or watered down, because there's a "war on terror"-- or a "war on drugs"-- going on. And when judges allow the President currently in office to take over powers that belong to other btranches of government-- for example, the power to declare war-- because they agree with the president's goals.
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