Sunday, April 2, 2017

How 'Borking' Began

An appellate judge on the 10th Circuit Court of Appeals, Neil Gorsuch, has been nominated to fill a vacancy at the Supreme Court. As a lawyer who was privileged to practice before both courts, I’ve keenly watched the process of his confirmation.
This process is framed by some history. Before 1987, the Senate usually confirmed whomever the president nominated. But then, President Ronald Reagan nominated Robert Bork.
Bork had been an acclaimed antitrust scholar and professor at Yale Law School. He had been the solicitor general where he handled dozens of Supreme Court cases. He also had served as an acting attorney general.
Chief Justice William Burger dubbed Bork “the most effective counsel to appear before the court” during Burger’s 17-year tenure.
Bork had been unanimously approved by the Senate for a judgeship on an appellate court. He had served there for the five years prior to his Supreme Court nomination. He was a preeminent jurist.
Within hours after Bork’s nomination, a politician who wanted to be president was on the Senate floor to deliver a bombastic and defamatory attack on him. The speech included this: “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 could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens.”
The politician and presidential hopeful who delivered that speech was Sen. Edward Kennedy. It was the second-ugliest thing Kennedy ever did.

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