Look What Robert Bork Hath Wrought

I am pausing to note the 20^th anniversary this week of Robert Bork's rejection as a Supreme Court justice because I've just finished the best current affairs book to come along since forever – The Nine, Jeffrey Toobin's insightful story of the "secret world" of The Supremes.

Bork, of course, is best known as the origin of the perjorative verb to bork, which is defined as viciously attacking a candidate or appointee through misrepresentation in the media.

The fight over President Reagan's nominee was indeed especially nasty coming as it did after the Democrats had regained control of the Senate in the 1986 election and amidst the low point of the Reagan era, the Iran-Contra Affair.

Democrats led by Senator Teddy Kennedy (with an assist by actor Gregory Peck, who did a Bork-bashing TV commercial) branded the legal scholar as an extremist who would roll back civil and women's rights.

Newspapers had a field day delving into every nook and cranny of Bork's life, including the videos he rented, such as A Day at the Races, Ruthless People and The Man Who Knew Too Much. But no porno movies, which we were to learn that future Justice Clarence Thomas had a fondness for some four years later, although not from the nominee himself, who was as silent during his stormy confirmation hearings as Bork had been verbose.

What is not as well remembered two decades after the Bork nomination crashed and burned is that hyperbole aside, he was indeed the extremist that his opponents painted him to be.

But as Toobin writes in The Nine, Bork's nomination failed largely because his backers in the Reagan White House, led by Attorney General Edwin Meese, hadn't done their homework:

"More than anything, the fight over Bork’s nomination illustrated that Meese and his allies had done a better job of persuading themselves of the new conservative agenda than they had of convincing the country at large. In truth, many of the Warren Court precedents – the ones Bork had attacked for so long – remained popular with the public, and consequently, in the Senate."

I doubt that many people remember that Reagan then nominated Anthony M. Kennedy, a comparatively moderate judge from his home state of California who was confirmed quickly and without anyone knowing his video rental preferences. Nor that it was Kennedy who banded together with Justices David Souter and Sandra Day O'Connor in 1992 to help defeat the last head-on effort to overturn Roe v. Wade, which was led by Chief Justice William Rehnquist.

What is crystal clear is that conservatives have gotten much better at imposing their agenda on the high court, helped in part by having the wind at their back in the form of a voting public that has tacked from left of center in the last 15 years, although now shows every sign of tacking back.

Alas, too late.

Thomas, Antonin Scalia, Samuel Alito and John Roberts, nominees of Bush père and his son, are all conservatives except when it comes to their judicial activism, the very outrage that conservatives decried when Bill Clinton was president. And with O'Conner, the great equalizer, retired, these four white men (yes, Thomas, too) will be imposing their agenda on all of us for many years to come.

As Toobin notes in the final pages of The Nine, only the outcomes of presidential elections will determine the future of the Supreme Court:

"Presidents pick justices to extend their legacies; by this standard, George W. Bush chose wisely. The days when justices surprised the presidents who appointed them are over.

" . . . This is as it should be . . .the Supreme Court operates at a higher plane than the mortals who toil on the ground. But the Court is a product of a democracy and represents, with sometimes chilling precision, the best and worst of the people. We can expect nothing more, and nothing less, than the Court we deserve."