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By Jeremy Paul

Pointed commentary on legal and political issues of the day: Just because ‘nothing is sacred,’ doesn't mean ‘anything goes.’ Jeremy Paul is dean of the University of Connecticut School of Law.

Dems Didn’t Start the Fire

Joe Nocera’s New York Times column, “The Ugliness Started with Bork” Oct. 22, 2011, vividly illustrates why informed citizens are so frustrated with contemporary punditry. Nocera offers four points: 1. Contemporary politics is marked by an unwillingness of Democrats and Republicans to work together and a profound mistrust of each side by the other. I agree.  2. Democrats and Republicans are both to blame for the breakdown of civil discourse. This is fair enough as long as it doesn’t imply any serious inquiry into who is more to blame, how or why.  3. The root of our “poisonous politics” dates back to the confirmation hearings of Robert Bork to serve on the U. S. Supreme Court. This selective and simplified history reads as if Nocera has swallowed partisan talking points to convince himself he is even-handed.  4. Democrats are now getting what they deserve because conservatives are winning on today’s Court, and Bork would have served as a restraining influence. This is just clueless.
Nocera’s problem, of course, is exactly the one at the root of our national dilemma. He has limited space in his column. He wants dramatic effect. So he grossly oversimplifies. This is just what the Democrats did when presenting Judge Bork to the country. But who can take seriously the idea that the Bork hearings were the beginning of “poisonous politics” in a country that since WWII had lived through the McCarthy hearings, a filibuster of the Civil Rights Act, the 1968 Democratic convention, and a President with an enemies list who bugged the headquarters of the opposition party.
Nocera is outraged that Senator Kennedy described Robert Bork’s America as a place in which women would be forced into back alley abortions. Kennedy’s is a politician’s formulation if there ever was one. Could the listener infer, unfairly, that Judge Bork himself favored such abortions? Sure. But would Senator Kennedy have been correct to note that if the Supreme Court overruled Roe v. Wade, some states would outlaw abortions and thus some women would sadly end up the victims of coat hangers? Yes he would. Bork’s constitutional philosophy could produce this tragic result even though it is not his desired outcome. Bork’s philosophy at that time was also hard pressed to explain the Court’s profoundly correct decisions outlawing segregation, even though Judge Bork himself expressed support for Brown v. Board of Education.
I leave it to readers to determine whether Kennedy and the Democrats went too far. Certainly a full-throated campaign against a judge who had been a brilliant legal scholar was a departure from the idea that judicial nominees should be judged on qualifications and character but not ideology. But Reagan’s nomination of Bork itself carried the seeds of partisan warfare. After all, Bork had been the Justice Department official who carried out President Nixon’s order to fire special prosecutor Archibald Cox after both the Attorney General and the Deputy Attorney General had refused. Rightly or wrongly, Democrats were looking for payback against a player in political drama not simply ganging up on a revered judicial figure.
More important, in terms of today’s issues the rhetorical excesses deployed against Bork were driven by Democrats’ belief that his addition to a divided Court would tip it in ways bad for the country. The same could be said of Republicans now voting against President Obama’s jobs bill because they think it will do more harm than good. Today’s concern, however, is that some members of Congress are voting against policies they believe would help the economy simply to rob the President of any political victories. It would certainly be plausible for a Republican member of Congress to say that he or she believes defeating Obama is more important to the country than any temporary success. But that level of purely partisan conduct, whether justified or not, goes far beyond the earlier Bork hearings or even the Clinton impeachment. If the opposing party in Congress is always simply trying to bring down the President, our system will find it very difficult to function.

Finally, let’s dispense with any idea that Democrats lost jurisprudential ground by defeating Bork. His replacement, Justice Anthony Kennedy, was part of the majority that re-affirmed Roe v. Wade and held unconstitutional state laws prohibiting homosexual sodomy. Kennedy has repeatedly been a swing vote, siding with the Court’s liberals in cases where it is clear a Justice Bork would have voted the other way. Whether or not Democrats sinned, they were certainly rewarded for their efforts.
Nocera’s effort to call Democrats into account is thus part of the deepest source of partisan gridlock in America today: a lazy media desperately looking for sound bites to feed to an overwhelmed electorate. Nocera suggests Democrats unhappy with partisan intransigence look into a mirror. I suggest that he do the same.

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