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On "Borking"

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Lindsay is very good on the attempts of various bloggers to defend the specious accusations of religious bigotry being dragged by various persons of bad faith into a debate about judicial nominations. (Do you think that Professor Bainrbridge as appalled that a non-believer would have no chance of being elected to major office in this country? Me thinks not. And, by his logic, this makes him a religious bigot.)

Since the term came up, a brief comment about “Borking.” One odd thing is that Bork’s failed nomination to the Supreme Court has become the definition of a bad nomination process, when in fact it was a case where the process worked as it should work. The Thomas nomination, in which legitimate questions about the substance of his judicial philosophy became eclipsed by personal issues of extremely marginal relevance to the position we was nominated for, represents a bad process. But the Bork nomination involved a substantive discussion of judicial philosophy without diversionary “character” questions. He was appointed for political reasons, of course, and rejected for political reasons, and in both cases the reaction was perfectly appropriate. It was Reagan’s right to appoint somebody who believes that the Court’s entire line of privacy cases is wrongly decided and that the federal government can legally segregate and that the 1st Amendment should be read extremely narrowly. And it was the Senate’s prerogative to reject someone with these views. The system worked as it should.

The other thing the Bork nomination shows is that, of course, Democratic opposition to reactionary jurisprudence has nothing to do with religion (not surprisingly, since you can’t get elected to the Senate if you’re a non-believer.) I’m not sure if Bork had converted to Catholicism at that point, but if so it certainly wasn’t widely known, and his religion was not a factor in defeating his nomination. What was widely known was a paper trial showing him to be a striking moral skeptic. I am unaware of any religious discourse that would refer to moral principles as “gratifications,” but Bork did. The philosophy of most of the judges Bush has nominated would, of course, be opposed by most Democrats irrespective of a judge’s religion.

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