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Kennedy, Rehnquist, and the Construction of “Borking”


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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