A snapshot at my attempt to winnow things so that the core of the matter is dealt with, to avoid misunderstandings and exaggerated claims ... something that I think is epidemic in opinion pages, the blogosphere, and politics. One talking point (both sides do it) among the progressives these days is to show that Robert Bork was not "Borked" to the degree that he was unfairly smeared. In fact, his nomination to the Supreme Court (for the last "swing" seat ... Powell ... leading to the likely new "swing" ... Kennedy) failed because his own views were clearly too "out there."
I responded to such a claim by trying to narrow things a bit. I argued that there were two levels of disapproval here: those that did not like the strong ideological attack at all (something many still claim is an illegitimate basis to oppose justices ... a tired claim, but just because one is tired in the morning, one still has to get up, right? that is, it still must be addressed) ... this I noted was unsound. In other words, Bork was up for a key seat, and a strong opposition to his views was legitimate.
Another level suggested his views were in effect twisted. I recall, in particular, one of Kennedy's speeches ... the desire to look at Bork's video rentals ... comments in an opinion that was interpreted to mean that he supported sterilization (a fetal protection law was at stake) ... and use of some of his old law reviews and views to suggest he still supported things like opposition to the Civil Rights Act. Or, rather, would so vote once on the bench. I would add that with his beard, he rightly can be said to have been view in some locales as in effect the devil.
This I felt was a bit more fair to argue, but that a quite sound case can be made that Bork still was treated unfairly. This brought various upset replies. His law review articles were not twisted. Well, no. I did not say that ... I actually said that they might have been taken too mean more than they really do. A few were noted in the comments ... as I replied, would Bork really have decided thusly in all respects once a justice? Someone else ignored by division of the debate and said that Bork was defeated based on fair questioning of his views. But, the concern -- nay disgust -- in some quarters was not really that. And, the fact Bork was in effect the start of a more passionate fight for the judiciary in recent years (though in part a response to the Reagan push to do just that) only added fuel to the fire.
[A later reply suggested Bork would in effect work to cut the foundations ala those who would attack Roe this way ... but this is telling, since this secures Roe for most people. It is far from painless -- it tends to hurt those who need its protections the most, but a hurt the weak argument is different from a "he will lead the way to back alley abortions" argument. Parent consent, second trimester limits, etc. might hurt a key 20% ... to supply a wildly rough estimate ... and be enough to be very concerned. But, it's a bit different, isn't it?]
Thomas was the first real nomination fight that I truly was into, so maybe my image of the Bork fight is incomplete. Generally, given my generalist view of things, this is often the case. I often try to get a general feel of things. Like I find this whole argument that Roberts and now Alito just played a conservative in the Reagan Administration, so we really cannot take too much from the memoranda etc., they were just advocates ... as b.s. I'm sorry. Rehnquist and Scalia were advocates too. There advocacy influenced their nominations and was surely reflected in their court opinions. Thurgood Marshall was advocates for clients ... many on the bench in the FDR years served in the FDR White House. Darn, if their previous service was later reflected in their court opinions.
But, I think the response to my comment was telling. Anyway, the Alito hearings began today. A couple things. Why did Sen. Specter go out of his way to suggest Alito is just another Souter, even having props of anti-Souter protests that feared his vote in Casey (wrongly ... though many conservative supporters of the nomination was just as wrong ... thinking he would overturn Roe ... but Alito actually is on record on this issue, one not quite important in NH)? Methinks he wants to vote for him or at least send a "hey look at me" message to conservatives.*
How about Alito saying he is conservative (no!) minded in part because of those children of privilege acting irresponsibly in his college years ('60s hating George Will must love him)? What would that be, Sam? Their opposition to a criminal war? Oh, how about his suggestion judges must decide cases, not tilt ... first, the Supremes mostly control their own docket. Second, Alito time after time leans a certain way somehow, even taking each case one at a time.
Yeah, this is bound to be fun. You know, like yesterday was for the Giants and Bengals. This was suggested by Mark Shields on PBS ... sign ... remarking how Alito came off as "one of us" ... as just one of the gang, a common sort. He used somewhat more striking language. The whole "son of an immigrant" (actually no ... his parents were born here) spin was commented for weeks on blogs and so forth. The "just one of the folks" motif is a tried and true method (Clarence Thomas, anyone?). To hear a so-called "liberal" leaning columnist talking as if Alito scored a coup by promoting it is somehow remarkable is annoying.
Oh vey.
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* He also tried to show the concern about Roberts -- that he along with Alito would change the Court -- looks to be an exaggeration too. What bullshit. He has been on the Court for all of four months, the Court handed down about that many opinions ... none of them really significant. In fact, some of his questioning from the bench suggested a conservative leaning. But, really no time has passed ... it is ridiculously too early to tell.
And, you thought the basic implication by the Democrats (for clear political effect) that O'Connor is a moderate (as compared to a generally moderate conservative) was a tad silly.