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Kennedy, Rehnquist, and the Construction of “Borking”

[ 33 ] December 27, 2012 |

I wasn’t aware of this before reading Phillip Jenkins’s new Rehnquist bio, but here was Ted Kennedy’s opening statement at the Judiciary Committee hearings on William Rehnquist’s appointment as Chief Justice:

Mainstream or too extreme? That is the question. By his own record of massive isolated dissent, Justice Rehnquist answers that question. He is too extreme on race, too extreme on women’s rights, too extreme on freedom of speech, too extreme on separation of church and state, too extreme to be Chief Justice.

His appalling record on race is sufficient by itself to deny his confirmation. When he came to the Supreme Court, he had already offered a controversial memoranda in 1952 supporting school segregation; he had opposed public accommodation legislation in 1964; he had opposed remedies to end school segregation in 1967; he had led the so-called ballot security program in the sixties that was a euphemism for intimidation of black and Hispanic voters. On many of these issues, it now appears that Mr. Rehnquist was less than candid with the committee at his confirmation hearing in 1971.

As a member of the Supreme Court, Justice Rehnquist has been quick to seize on the slightest pretext to justify the denial of claims for racial justice. His dissent in the Bob Jones University case supported tax credits for segregated schools. In Batson v. Kentucky, his dissent supported the rights of a prosecutor to prevent blacks and 16 minorities from serving on a jury. In the Keyes case, his dissent supported the view that segregation in one part of a school district does not justify a presumption of segregation throughout the district.

For those unfamiliar with the 1952 incident, Rehnquist wrote a memo while clerking for Robert Jackson arguing that “Plessy v. Ferguson was right and should be reaffirmed.” He then told ridiculous lies about it at his 1971 confirmation hearing as associate justice.

As you can, see there was nothing “unprecedented” about Kennedy’s speech on Bork. Kennedy’s alleged offense — i.e. accurately characterizing the views of a Republican nominee in a way that is politically unfavorable to the nominee — was something he had done a year earlier with little fanfare. And, of course, Kennedy’s substantive attacks can’t really hold a candle to, say, Strom Thurmond’s performance (up to and including porn screenings) at the Fortas hearings.

Kennedy’s similar statements about Rehnquist got little attention simply because they weren’t politically relevant. With Republican control of the Senate there was no real prospect of defeating Rehnquist’s nomination, and given the trivial distinction between whether Rehnquist was casting the same votes as a Chief or Associate justice (as opposed to the major differences between Bork and Powell) there was no reason for Senate Democrats to make a big push. The idea that Kennedy’s statements about Bork where somehow unprecedented or unfair was just a very clever political gambit by Republicans, who have successfully gotten their substantively vacuous whine translated into a narrative that justifies any possible bad behavior in the Senate. (How does Robert Bork getting a fair vote on the merits justify creating a de facto supermajority requirement for most legislation? It all makes sense because Ted Kennedy was so mean!) I doubt that it matters all that much — if they hadn’t constructed an excuse out of the Bork hearings they would have found another one — but it is amazing how many journalists continue to take the Bork narrative seriously.

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  1. TT says:

    Question: Does the power of Ted Kennedy’s Meanness match that of the Clenis? After all, the Clenis forced honest, humble, and totally bipartisan conservatives into doing a bunch of crazy shit.

  2. Vance Maverick says:

    In a more media-saturated age, publication of that photo might have constituted Borking all on its own. “In William Rehnquist’s America, respected jurists can flourish frightening rows of incisors.”

    More to the point, this shows the difficulty of assessing speech such as Kennedy’s. However cogent and aggressive the words seem on the page, what matters is how the speech act played out at the time.

  3. Lee says:

    South Carolina is a really interesting state, in a bad way. During the colonial period, it was the richest province in British America. After the Revolution, it quickly feel into economic irrelevancy and really only produced extremely reactionary politicians and politics since then. Every famous political figure from South Carolina gained their reputation by their vehement defense of very reactionary politics even by Southern standards.

    Besides one of the very few cities in the United States that can be described as beautiful and some very important social dances, which was mainly the work of African-Americans, has South Carolina given anything of value to the Union after the Revolution?

  4. c u n d gulag says:

    Ah, yes, the good old day’s, when Conservatives grew longer sideburns, trying to look younger, and more “hip” and “cool.”

    And then, instead of adding Granny Glasses, or wire aviator frames, to finish the look, they intead put on their old pair of old horn-rimmed glasses – and became just dorks with longer sideburns.

    I wonder, are there any photo’s of Conservative men with Nehru Jackets, wearing top hat?
    Or, tie-dye shirts, bell-bottom jeans, and spat’s?

  5. DrDick says:

    Just another reasonable conservative ™ denied an opportunity by liberal zealots./s

    • Vance Maverick says:

      That would be taking resentmanship to a high level — whining about mean attacks that didn’t succeed in inflicting any damage.

      • DrDick says:

        That sort of is at the heart of modern conservatism, now isn’t it? Take the “War on Christmas” or the supposed persecution of Christians for instance.

      • mds says:

        That would be taking resentmanship to a high level — whining about mean attacks that didn’t succeed in inflicting any damage.

        It’s already been done. Clarence Thomas and his posse haven’t ever stopped seething about the victimization he suffered in successfully getting a lifetime Supreme Court appointment.

        • Bill Murray says:

          But they inflicted damage. Do you think our Clarence can discuss Long Dong Silver with his female underlings anymore? No, and that is a huge amount of damage given his now flaccid personality

  6. Bitter Scribe says:

    For me the quintessential Rehnquist ruling will always be the one where he maintained that for a health insurer to deny pregnancy benefits was not sex discrimination, because if men could get pregnant, they wouldn’t be covered either. Fortunately, Congress in those days was not completely dominated by insane people, and they promptly passed a law reversing that ruling.

  7. Bloix says:

    “On many of these issues, it now appears that Mr. Rehnquist was less than candid with the committee at his confirmation hearing in 1971.”

    I was a law clerk in 1986 and I followed the broadcast hearings on the Rehnquist nomination for chief justice closely. There was no doubt that he perjured himself, both at his original 1971 hearing for associate justice and his 1986 hearing for chief justice.

    After Rehnquist had testified at his 1971 hearing, several witnesses came forward to say that he had personally been engaged in voter suppression activities at Arizona polling places in 1962. Instead of calling him back to testify, the Judiciary Committee asked him questions in writing, and he responded, under oath, that he had not been at the polls and did not peronally participate in Republican party “ballot security” activities in 1962.

    At the 1986 hearings, Kennedy produced four witnesses – not known to each other, all of them respectable people with no axes to grind – who swore that they personally saw Rehnquist intimidating voters at polling places in 1962. The witnesses were:

    Sydney Smith, a psychoanalyst

    James Brosnahan, a former federal prosecutor and then-partner in a major San Francisco firm

    Manuel Pena, an Arizona Democratic state senator

    Charles Pine, a former Arizon state Democratic Party chairman

    The witnesses’ testimony was clear and certain, and it squarely contradicted Rehnquist’s sworn 1971 testimony. And they had no motive, no reason to pit themselves against the future Chief Justice or to expose themselves to attacks in the national media.

    Any impartial observer could have come to only one conclusion: Rehnquist was lying.

    And yet 2/3′ds of the Senate voted for him. They just didn’t care that he had lied in their faces. And they didn’t care that the chief justice of the United States was going to be an obvious perjurer, a felon who deserved to be in prison.

    • LosGatosCA says:

      You may not be aware of two important, binding precedents about felony perjury:

      1. IOKIFYAR
      2. It’s only real perjury if it involves sex
      – see Clinton vs the Sex Police, and Barry Bonds, who cheated on his wife

    • rickhavoc says:

      Brosnahan’s testimony was particularly memorable. He had witnessed Rehnquist challenging voters at polls in the early 60s and testified to it. When asked from the panel whether he was sure it was Rehnquist, Brosnahan noted that he had skipped his favorite lunch spot in SF that day to come to DC and call Rehnquist, who he expected to be confirmed and in front of whom he expected to soon be representing clients, a liar, so yeah, he was sure.

  8. LosGatosCA says:

    One of my favorite Nixon tapes quotes was when Tricky Dick showed his personal commitment to his nomination by referring to him as ‘Renchburger’ a much better name by far. It led to my personal mental nickname for the chief justice from Gilbert and Sullivan (didn’t you just love the the sleeve stripes?) as Reichburger.

    • RhZ says:

      I was waiting for someone to note the epaulets. In my mind that says volumes about his character. He was the highest judge in the land, but he still needed some stripes on his sleeve so that people would know he was higher than the rest.

      What a wanker.

  9. Julia Grey says:

    he had led the so-called ballot security program in the sixties that was a euphemism for intimidation of black and Hispanic voters.

    “Voter ID” by any other name….

    Cheeze, they’ve been at it for 50 years now.

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