Borked! America's creepiest-ever Supreme Court nominee still haunts our broken system

Merrick Garland is nothing like Reagan's doomed nominee, but Bork's ghost plays a major role in the SCOTUS farce

By Andrew O'Hehir

Executive Editor

Published March 19, 2016 4:00PM (EDT)

Robert Bork   (AP/John Duricka)
Robert Bork (AP/John Duricka)

Not long after I moved to New York from California in the mid-1990s, I was walking somewhere in midtown Manhattan and nearly collided with Robert Bork, who was coming out of a hotel carrying his suitcase. (One of my first thoughts: Robert Bork carries his own suitcase?) I recoiled mentally, and quite likely physically as well; it was like coming face to face with Lord Voldemort, or a highly venomous cobra, on 54th Street. Bork did not appear to notice and carried on with lugging his suitcase to the waiting car. I reflected later that he had to spend his entire life being Robert Bork, and after 1987 that must have involved a lot of double takes from strangers. (That’s as close to compassion for that guy as I’m going to get, I’m sorry.)

Bork was the creepiest and most contentious Supreme Court nominee of all time, and on a list that includes Clarence Thomas that’s quite an accomplishment. He is presumably the only SCOTUS nominee ever accused of possessing too weird a beard (that from Sen. Howell Heflin, an Alabama Dixiecrat who hinted that Bork’s Amish-style wraparound suggested a “strange lifestyle”), and the only one to accuse his opponents of “scurrility,” a noun that began to drift out of the English vocabulary around the middle of the 19th century. Now Bork is back, amid the farcical furor surrounding Barack Obama’s nomination of Merrick Garland, even though the actual person I encountered on that Manhattan sidewalk died in 2012.

In some senses he never went away. Alive and dead, Bork’s bearded visage has haunted American law and American politics for 30 years. He was overwhelmingly rejected by the Senate in October of 1987, with six Republican senators joining 52 Democrats in voting against him. It was the largest such defeat for any high-court nominee in 176 years, and the American far right has nursed a grudge about it ever since. But that was definitely not the end of the Borkodyssey.

Whatever relationship you perceive between the Garland nomination and the Bork debacle — and it’s more complicated than either side is willing to admit — Republicans have seized upon Garland as a ritual sacrifice and a long-awaited moment of Bork payback. What’s more, Obama and the Democrats knew that would happen (because the Senate Republicans clearly said it would) and both parties are playing the whole thing for political advantage. Merrick Garland is essentially a footnote, thrown into the shade by a dead guy with a weird beard.

It’s not even accurate to say that Garland, the D.C. appellate court judge whom Obama has nominated to replace right-wing hero Antonin Scalia on the Supreme Court, is about to be Borked. Garland has been pre-Borked, or über-Borked. This is an illegitimate nominee put forward by an illegitimate president (in the most distilled version of the Republican worldview), who therefore does not even deserve to be Borked. Oh snap, Mitch McConnell! You have raised Borking to the power of infinity. You have merged Borking and voguing. You haven’t Borked just one person; you have Borked the world.

Whether Merrick Garland resembles Robert Bork in the slightest, as a jurist or a person — whether it's remotely fair to categorize him as a “liberal Bork” — is irrelevant. I mean, he doesn't and it isn't, but that doesn't matter. If you ask me, the Garland charade is one of those moments that reveal the hypocrisy of both political parties. Don't look so shocked, Democrats: I'm not saying there's no difference between them, or that one version of political hypocrisy is not preferable to the other. But it's ludicrous for Democrats to get the vapors and stagger around in exaggerated disbelief, announcing that Republicans have politicized the nomination process and who could ever have imagined that such a dreadful thing would happen?

No, Garland isn't Bork and yes, by any conventional standard he is qualified for the Supreme Court. Send him back in a time machine and Richard Nixon would probably appoint him, which was more or less the point of picking him. But in terms of our contemporary political drama, Garland is the patsy or the fall guy. He's like the bespectacled accountant who goes to prison instead of Tony Soprano, and what he will get out of it I have no idea. (He doesn't seem like the kind of guy who yearns for a Vegas condo full of hookers, or who believes his suffering will get paid back in heaven. But what do I know?)

Honestly, you have to feel for the guy: Garland got all choked up in the Rose Garden talking about what an honor this was and how much he loves his wife, and that was lovely. But when he hears his first case as a Supreme Court justice, it is likely to involve pigs flying over the frozen wasteland of hell. If he doesn't understand that, he's dumber than he looks. I suppose Garland allowed himself a few moments of wishful thinking while he sat there in the Oval Office with Obama and Joe Biden whispering sweet nothings in his ear — and it's possible there is a devious long game at work here, in which he gets renominated next year by President Hillary Clinton. (He resembles a Clinton nominee more than an Obama nominee, although it's a fine distinction.)

But it can't feel good to be nominated for the highest court in the land, fulfilling the nerdy daydreams of every ramen-eating law student who has ever purchased a Brooks Brothers knockoff suit, while suspecting that you are destined to become the answer to a Trivial Pursuit question. Garland was engineered to be the un-Bork or the anti-Bork, who would be Borked anyway as a demonstration of GOP intransigence. His nomination is all about making the Republicans look bad and boosting the Democrats' chances of retaking the Senate; fitting Associate Justice Garland for one of those velvety black robes, even if it happens, would be an accidental afterthought.

Democrats are of course correct that the Republicans are being obnoxious and small-minded, and pursuing the politics of total obstruction even when faced with the most moderate, most reasonable and least objectionable nominee anyone could possibly imagine. (If the Senate were actually to consider Garland seriously, we would start to hear objections — mostly from the left.) But Republicans are at least partly correct that it was Democrats who turned the Senate confirmation process into a political war zone, almost 30 years ago.

Bork was nominated by Ronald Reagan to fill the vacancy created by the retirement of Justice Lewis F. Powell Jr., a Nixon appointee who had been a reliably conservative vote but not a hard-line troglodyte. (Powell voted with the majority in the Roe v. Wade decision that legalized abortion, for instance.) Bork’s nomination epitomized the growing power of the far right late in the Reagan era, when the jovial president was — how shall we put it? — just a bit checked out on the details of government, not to mention unclear about what day it was.

Naming Bork was also a deliberate provocation, and something of a Fort Sumter moment in the bitter partisan civil war of the last several decades. Ted Kennedy took to the Senate floor 45 minutes after Reagan made the announcement to deliver a stinging speech about "Robert Bork's America," where, Kennedy said, lunch counters would once again be segregated, women would be forced into back-alley abortions and schoolchildren would no longer be taught evolution. Bork's nomination never recovered from that onslaught, but as you may have noticed many of Kennedy's threats reverberate even more ominously today.

No doubt Reagan’s strategists and allies believed they would prevail in the Bork battle. Scalia, who was every bit as conservative, had been confirmed by the Senate 98-0 a year earlier, a vote many Democrats would live to regret. But they must have known they were in for a fight. Bork had been a symbolic right-wing hero since the “Saturday Night Massacre” of 1973, when he was the highest-ranking Justice Department official willing to obey Nixon’s order to fire Watergate special prosecutor Archibald Cox. (Attorney General Elliot Richardson and his deputy had both resigned instead of following a blatantly illegal presidential directive.)

Both as a prominent law professor at Yale and as a judge on the D.C. circuit court (the same one where Garland now sits), Bork did more to advance the counterrevolutionary judicial philosophy known as “originalism” than anyone else. The only way to undo the generations of damage done by activist judges who “legislate from the bench” and understand the Constitution as a living and evolving set of guidelines rather than an inflexible scripture, Bork argued, was to uncover the “original understanding” of the framers and stick to it. Some ultraconservative legal minds would later suggest that Bork’s originalism didn’t go far enough; I’m pretty sure Ted Cruz, the SuperBork cyborg, falls into this category.

To many people’s tastes Bork went plenty far. In his reading of the Constitution he discerned no right of privacy, and he barely tried to conceal how he would vote if and when Roe v. Wade came up for review. (That mistake and many others, up to and including the hectoring, pedantic demeanor and the Alexander Solzhenitsyn tonsorial choices, would not be repeated by any subsequent nominee.) Bork saw no constitutional basis for the federal government to enact civil-rights or voting-rights laws, or to enumerate specific rights for groups the framers hadn't thought about, including women and gay people. He believed that federal antitrust laws and environmental regulations were largely unconstitutional (except when they applied to interstate commerce). It was not at all clear that Bork thought the 13th, 14th and 15th amendments, which ended slavery and redefined the rights of citizenship, or the 19th, which extended the vote to women, or any of the others passed since about 1795, could survive in the harsh light of originalism.

You can call Bork all kinds of names, but you can’t call him a hypocrite. He was nowhere near hypocritical enough to survive in the political climate of the 1980s, when the radical views he embraced struck many Americans, including many Republicans, as bizarre artifacts of the right-wing fringe. Scalia subscribed to exactly the same originalist doctrine but was a smoother character, a clubby Washington type who joked with Democratic senators about their tennis games and sailed through without opposition. I don’t blame Kennedy and Joe Biden (then the chair of the Senate Judiciary Committee) and the NAACP for singling out Bork and turning his nomination into a political litmus test. But as the Scalia case makes clear, they did so for the wrong reasons: Not because Bork was an ideological renegade who wanted to roll basic concepts of American justice and equality back to pre-Civil War standards, but because he was an arrogant, funny-looking weirdo who was easy to defeat.

Merrick Garland may have a similar problem: He doesn't seem hypocritical enough for Washington politics either. If he took a more cynical view of the world, Garland might understand that he has no chance of being confirmed by the Senate, that he is being used as a political pawn and that he embodies all too perfectly the Democrats’ ineffectual response to the right’s long-term campaign of legal conquest. If Bork’s originalist theology has not triumphed entirely, no one would claim today that it's outside the mainstream of constitutional thought. It has become universal Republican orthodoxy and is widely taught in law school; it's the motivating force behind Ted Cruz’s political career.

Looking back at the Bork nomination, we may well ask who actually won that 1987 struggle, and who lost. The Republican Bork was, well, Bork — an erudite right-wing revolutionary who fought for enormous changes in American law and American society, and lived to see many of his goals accomplished. The Democratic Bork is a likable fellow who loves his wife and is deemed inoffensive to all. One of them changed history, even in defeat; the other is likely to end up as historical roadkill.

By Andrew O'Hehir

Andrew O'Hehir is executive editor of Salon.

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