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Koh v. Bork


One thing to add to Dahlia Lithwick’s superb defense of Harold Koh is a comparison with the Bork nomination, allegedly the Most Uncivil Moment in American History (at least before the era of blog commenters.) The thing about the charges in Ted Kennedy’s “infamous” speech about Bork is that the charges in it were accurate — Bork did oppose the Civil Rights Act, advocate an extraordinarily narrow reading of the First Amendment, strongly oppose the existence of a constitutional right of privacy, etc. And he did these things not in obscure speeches but in public writings. One can dispute the relevance of his past positions, agree with them, etc., but bringing them up was fair game. (Kennedy’s speech was tenedentious, sure, but making that accusation of a politician is like accusing water of being wet. The attacks weren’t false.) Claims the Koh favors the imposition of Sharia law, believes that Mother’s Day should be abolished, etc. are just straightforwardly false. And, yet, the mainstream media remains far less bothered about this particular breach of civility.

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