Then-Senators Joseph Biden and Edward Kennedy at then-Judge David Souter's Supreme Court confirmation hearings in 1990. (Image from UPI.)
It’s fitting, in a way, that a conservative would find a way to view one of President Reagan’s greatest political misfires as an example of one of liberal Senator Edward Kennedy’s political failings.
In today’s New York Times, Sam Tanenhaus, in an awkward conservative-looking-at-a-liberal-trying-to-write-something-nice-ish-but-must-get-in-some-unnecessary-digs piece, denounces as the example of when Edward Kennedy “faltered” politically (beside his 1980 run at the Presidency), his “intemperate denunciation of Judge Robert H. Bork.”
Far from faltering, it is this moment that stands, in retrospect, as one of the saving liberal graces of the 1980s, a moment in which the Reagan Revolution was finally told, in no uncertain terms, that it had its limits. Here is the key part of the July 1, 1987, floor speech from Kennedy that became known as “Robert Bork’s America” (the full speech can be found below the jump):
Mr. President, I oppose the nomination of Robert Bork to the Supreme Court, and I urge the Senate to reject it.
. . . .
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
Former Judge Bork
Even without Bork’s presence on the Court, time has proven out that this was not some completely irrational rant. This was a listing of the very real, albeit extreme, outcome of Bork’s previous statements (with the exception of the evolution statement, the genesis of which I am unaware) — and they have proven prescient. Although Kennedy presented the rhetorical extreme in that summer, the Court since has taken steps in these directions — from placing many restrictions on a woman’s right to an abortion as expressed in Roe v. Wade to ending school busing plans that prevented de facto segregation in America’s city schools.
To see the lengths to which Kennedy’s views were not at all outside the realm of possibility, it is instructive to look at the ways the conservatives on the Court have or would have limited the reach of one of Kennedy’s signature pieces of legislation — the Americans with Disabilities Act.
The doors of the courts have been shut to people with disabilities, as folks like now-Sixth Circuit Judge Jeff Sutton argued that laws like Title I of the Americans with Disabilities Act did not apply to the states, as the Supreme Court ruled in Board of Trustees of the University of Alabama v. Garrett. Later, in Tennessee v. Lane, a four-justice minority of the Court would have gone so far as to rule that even Due Process concerns of disabled individuals — actual access to the courts — as enunciated by Congress in Title II of the ADA were not a legitimate area for congressional action.
Another Reagan nominee, now-Justice Antonin Scalia, wrote a remarkable dissent in Lane stands as proof that — far from faltering — Senator Ted Kennedy did the nation some of his greatest good when he stood strongest against the conservatives’ judicial plan for America. Scalia wrote:
And one does not “enforce” the right of access to the courts at issue in this case, see ante, at 19, by requiring that disabled persons be provided access to all of the “services, programs, or activities” furnished or conducted by the State, 42 U.S.C. § 12132. That is simply not what the power to enforce means–or ever meant. The 1860 edition of Noah Webster’s American Dictionary of the English Language, current when the Fourteenth Amendment was adopted, defined “enforce” as: “To put in execution; to cause to take effect; as, to enforce the laws.” Id., at 396. See also J. Worcester, Dictionary of the English Language 484 (1860) (“To put in force; to cause to be applied or executed; as, ‘To enforce a law’ ”). Nothing in §5 allows Congress to go beyond the provisions of the Fourteenth Amendment to proscribe, prevent, or “remedy” conduct that does not itself violate any provision of the Fourteenth Amendment. So-called “prophylactic legislation” is reinforcement rather than enforcement.
. . . .
Requiring access for disabled persons to all public buildings cannot remotely be considered a means of “enforcing” the Fourteenth Amendment. The considerations of long accepted practice and of policy that sanctioned such distortion of language where state racial discrimination is at issue do not apply in this field of social policy far removed from the principal object of the Civil War Amendments.
This cramped view of the Fourteenth Amendment was, of course, was one of Kennedy’s fears for a Supreme Court on which Bork sat, and keeping Bork off the Court was one of the few clear liberal victories of the time. Tanenhaus is engaging in some misguided revising of history — in the context of his essay about Kennedy’s liberalism — by pretending otherwise. Stopping Bork’s nomination was an essential step in liberals’ efforts at slowing the conservatives’ project to install a far-Right Court.
Senator Kennedy’s opposition to Robert Bork may have been used by conservatives — and liberals — as an excuse for the further politicization of the nomination process “up to the present day,” as Tanenhaus writes. Kennedy’s words struck, they stung and they were harsh — but they were not made without legitimate concern. Bork — as his writings before and since illustrate — was an extreme choice, and Kennedy explained why.
For all the things it might have been, stopping the Bork nomination was not an example of Kennedy’s political skills faltering in pursuit of liberalism. If anything, it was an example of when he most successfully used all the political tools at his disposal — no matter how sharp (or blunt) their edges — to advance the cause of liberalism.
* * * * *
Sen. Edward Kennedy, on the floor of the U.S. Senate, July 1, 1987:
Mr. President, I oppose the nomination of Robert Bork to the Supreme Court, and I urge the Senate to reject it.
In the Watergate scandal of 1973, two distinguished Republicans — Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus — put integrity and the Constitution ahead of loyalty to a corrupt President. They refused to do Richard Nixon’s dirty work, and they refused to obey his order to fire Special Prosecutor Archibald Cox. The deed devolved on Solicitor General Robert Bork, who executed the unconscionable assignment that has become one of the darkest chapters for the rule of law in American history.
That act — later ruled illegal by a Federal court — is sufficient, by itself, to disqualify Mr. Bork from this new position to which he has been nominated. The man who fired Archibald Cox does not deserve to sit on the Supreme Court of the United States.
Mr. Bork should also be rejected by the Senate because he stands for an extremist view of the Constitution and the role of the Supreme Court that would have placed him outside the mainstream of American constitutional jurisprudence in the 1960s, let alone the 1980s. He opposed the Public Accommodations Civil Rights Act of 1964. He opposed the one-man one-vote decision of the Supreme Court the same year. He has said that the First Amendment applies only to political speech, not literature or works of art or scientific expression.
Under the twin pressures of academic rejection and the prospect of Senate rejection, Mr. Bork subsequently retracted the most neanderthal of these views on civil rights and the first amendment. But his mind-set is no less ominous today.
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tip the scales of justice against the kind of country America is and ought to be.
The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our President. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans. No justice would be better than this injustice.
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Chris Geidner is the award-winning senior political editor at D.C.'s Metro Weekly and has written for The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. In 2011, he received the Excellence in News Writing Award from the National Lesbian and Gay Journalists Association for his coverage of "Don't Ask, Don't Tell" repeal. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found
Tanenhaus was mild, polite, reasonable and respectful compared to his colleague Tobin Harshaw, who declared that “in terms of both dramatic and lasting effect, nothing in his 46-year tenure in the Senate comes close to” the denunciation of Bork, and compared it to Joseph McCarthy’s “communists in the State Department” speech.
With regard to Bork’s beliefs on evolution, Kennedy may have had knowledge of Bork’s private sentiments on the subject before Bork expressed them very publicly in his 1996 book Slouching Toward Gomorrah, in which he said,
In that book, Bork also claimed that “the fossil record is proving a major embarrassment to evolution.” The “fossil record” challenge against evolutionary theory was very trendy at the time (I remember hearing it from one of my own science teachers in East Texas). A Supreme Court case, Edwards v. Aguillard, struck down Louisiana’s law mandating that evolution be taught only where creationism also was taught, which in practice seemed to revolve around teaching such “challenges” to the theory of evolution as arguments in favor of Creation. As best as I can tell, at the time of Kennedy’s statement, the remark regarding evolution was not treated as at all mysterious; it was taken as a reference to Bork’s views on the Louisiana case. Edwards was decided 7-2 less than two weeks before Kennedy’s speech about Bork.
Tanenhaus is the editor of the NYT Review of Books and had a lengthy column published as the lead story of the Sunday NYT’s Week in Review. I’m thrilled he was “mild, polite, reasonable and respectful” in comparison to another, but I think he got it wrong.
Harshaw had a blog post, collecting several partisan blog reviews regarding the speech, and made some snide comments/implications in so doing. He goes further afield, but I think actually would agree with me that Tanenhaus is wrong when he writes that Kennedy’s Bork opposition was a time when his political skills “faltered.”
Interesting note about the evolution portion, though. I did not know that. Thanks.
I’m not lawyer or legal expert in any way so I won’t comment on those aspects of the note. I do believe, however, that it was Kennedy’s Borking of Bork that began the long slide we have seen toward what is now, basically, the highly partisan process of having the senate dispose of supreme court nominations. In retrospect, I wonder if Senator Kennedy might have accomplished his goal of derailing the nomination without resorting to soaring rhetoric more suitable to the campaign trail than the senate floor; and signalling both its appropriateness and effectiveness. Surely, he couldn’t have been pleased with what became of the senate process of handling judicial nominations at all levels.
Were it not for the Bork “breakthrough” I wonder if perhpas as Senator, Obama might have voted to confirm John Roberts, and further if more Republicans might have supported Sotomayor. Senator Kennedy had many great moments. I don’t see the Bork nomination as one of them.
Bill,
If you believe that Bork’s nomination was the first time a Supreme Court confirmation process was politicized, I recommend that you read up on what happened to Abe Fortas when LBJ nominated him to the Chief Justice position in 1968. This was conservatives’ first opportunity to strike back at the liberals of the Warren Court, and they took it. American political life has been tough for a much longer time than most of us have been watching it.
Come on. By the same logic, if I say, “Barack Obama is a communist,” I’m not commiting a calumny, I am merely stating an “extreme outcome” of the statement that he supports redistribution of income. Were a political opponent use this form of logic, you’d never accept it.
Er, plenty of people are claiming that the “outcome” of Democrats’ health care reform plans will be a complete government takeover of the health care system. When asked where in the various bills such an outcome is stated, these people concede that it isn’t in the text but that (a) some Democrats are in favor of an NHS-style system; and (b) nothing in the reform proposals would *prevent* such an outcome. Such rhetoric is propagated at the Washington Post, among other venues.
Why is it OK to say that HR 3200 will put all private health insurance out of business (which of course goes even further than an NHS system, since there’s still private health insurance in the UK to “top up” the basic NHS level of care), but not OK to say that Bork’s constitutional views would lead to, at minimum:
(1) abortion’s becoming re-criminalized and a return to back-alley abortions (Bork famously called the 9th Amendment an “inkblot” and denied that there could be any basis for a right to privacy, thus also nullifying any right to obtain contraception — Griswold);
(2) legality of racial segregation in public accommodations (Bork opposed the Civil Right Act of 1964 as an overreach of the interstate commerce clause powers)?