Booker and Borking

Bork [v]: “to accurately describe the unpopular positions of a Republican judicial nominee”:

So why were Senate Republicans so worried that Brett Kavanaugh would be revealed as someone with conservative views on legal issues? His legal conservatism is widely understood and even promoted as the reason for his nomination, and enough has been written about his broadly understood opposition to Roe v. Wade that it’s essentially canon at this point.

So to understand why Republicans are seeking to hide the blatantly obvious, it’s critical to understand the Republican myth of Robert Bork.

The idea that Bork was treated unfairly has been a pillar of Republican discourse since his defeat, and his name is always invoked whenever Senate Republicans violate another norm involving judicial nominations. As the mythos goes, Bork was unfairly denied a seat on the Supreme Court by Democrats who unfairly attacked his views on various issues.

Their complaints center around a speech given by Senator Ted Kennedy after Bork was nominated, in which he said (among other things) that “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” and “writers and artists would be censored at the whim of government.”

The problem with the Republican complaints about the speech is that nothing about it was inaccurate: In his public writings, Bork had opposed Roe v. Wade, decried the Civil Rights Act as immoral and unconstitutional and taken a narrow view of the First and Fourth Amendments. And he was nominated by Ronald Reagan because of his conservative views, which Democrats highlighted.

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As four legal scholars demonstrated in detail at the Take Care blog, a similar Republican kabuki is taking place with respect to Kavanaugh. Prior to his nomination by Trump, Kavanaugh was widely praised by conservatives for his completely orthodoxy on conservative issues in politically salient legal reviews. And yet, as soon as he was nominated by Trump, his substantive views allegedly became an unknowable mystery.

Before the nomination, statements about Kavanaugh focused on his predictably conservative votes and opinions; after the nomination, Republicans prefer to discuss his alleged “open-mindedness” and (undeniably impressive) formal credentials.

It’s not a coincidence that some of the emails Republicans sought to conceal involve abortion. Most Americans want Roe v. Wade upheld and, if confirmed, Kavanaugh is a near-certain fifth vote to overrule it (whether explicitly or not.) To confirm him, Republicans absolutely need the votes of at least two nominally pro-choice Republican senators, Susan Collins of Maine and Lisa Murkowski of Alaska, and that’s assuming they hold the vote, as planned, before the midterm elections in which they might well lose seats. Meanwhile, Kavanaugh is already unusually unpopular for a Supreme Court nominee.