I have some minor quibbles with Jeffrey Rosen’s defense of Joe Biden’s handling of the Bork and Thomas confirmation hearings. While I agree with Rosen, for example, that the looking into Bork’s video records was outrageous, it’s also not reasonable to conflate that with Anita Hill. But since there seems to be a rule that it has to be mentioned in any Broderite complaint about the confirmation process, I was really dreading the inevitable blubbering about mean Ted Kennedy’s treatment of poor defenseless Robert Bork, and sure enough we got it — but with a twist. Nothing in Kennedy’s famous statement was inaccurate, although I grant that some of it was tendentious. (I know, shocking behavior from a politician.) When he said that “Robert Bork’s America is a land in which…blacks would sit at segregated lunch counters,” he was right that Bork had both claimed that the Civil Rights Act was unconstitutional and bad policy, but Bork had at least repudiated his position once his position had been repudiated by history. But what does Rosen quote?
When President Ronald Reagan nominated Robert Bork to the court in 1987, some liberal senators and interest groups were eager to distort his record. Hours after the nomination was announced, for example, Senator Edward Kennedy charged that “Robert Bork’s America is a land in which women would be forced into back-alley abortions.”
Senator Biden, who had built a national reputation by attacking the excesses of liberal interest groups, made clear that he would not tolerate these ad hominem attacks.
First of all, Kennedy’s statement wasn’t an ad hominem attack; it was an attack on Bork’s substantive views. That it was harsh doesn’t it render it ad hominem. But more to the point, the passage quoted by Rosen, far from a “distortion,” is indisputably accurate. Bork would have provided the fifth vote to overturn Roe v. Wade; this was not in serious dispute at the time, and surely Bork claiming in a book written immediately after the hearings that Roe was as bad or worse than Dred Scott settles the question. So what could Rosen’s objection possibly be? Is he claiming that no state would have banned abortion if Roe had been overruled? Is he saying that this new round of laws, unlike every other criminalization in history, would not have produced a black market? Obviously, neither argument would be tenable. Kennedy’s statement was wholly correct. If one wants to argue that Bork merited confirmation anyway, fine, but I don’t see why on earth senators shouldn’t be permitted to candidly discuss the inevitable implications of his confirmation, especially since said implications played a crucial role in the president’s decision to nominate him.
If I understand correctly, “Borking” means “describing the views of arch-reactionary judicial nominees in ways that are accurate but make centrist pundits uncomfortable.”