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Pining for Bork

He was as divisive a Supreme Court nominee as can be imagined. But Democrats should hope they get a pick like him. Here’s why.


Illustration by Andy Friedman  

About halfway through John Roberts’s Supreme Court confirmation hearings, I found myself grappling with a strange and surprising emotional reaction: I was pining for Robert Bork. For anyone with a sense of history watching Roberts artfully bob and weave through his face-off with the Senate, it was hard to ignore the hovering specter of the goateed strict constructionist, whose ordeal in the upper chamber took place exactly eighteen years ago this month. In no small part, the ease of Roberts’s passage was due to his positioning as Bork’s inverse doppelgänger: humble where Bork was arrogant, silken where Bork was spiky, cherubic where Bork was Mephistophelean—and evasive where Bork was candid.

For the Bush White House, offering up a plausible anti-Bork to be the new chief justice has proved to be not merely clever but fortunately timed. In the wake of Katrina and its submersive effect on Bush’s approval numbers, the last thing the administration needed was some Borkian bloodbath. What it needed was a solid win smoothly achieved—and, barring a last-minute revelation of a Roberts indiscretion of the dead-girl–live-animal variety, that’s precisely what it’s going to get.

The received wisdom in Washington is that the nomination now waiting in the wings will be another story; that Bush’s selection to replace Sandra Day O’Connor is guaranteed to ignite a conflagration. These ominous predictions are invariably offered in tones of resigned regret, along with earnest entreaties to the president to choose a path of conciliation.

But just below the surface, in the activist cadres of both parties that drive confirmation politics, there is in fact a palpable yearning for a knockdown, drag-out brawl. Fueling this desire are a host of motivations, many of them mindlessly divisive—and yet I see the point. Even after Roberts’s senatorial interrogation, we still have precious little grasp on what sort of justice he will be. Which isn’t exactly the outcome you’d hope for with the future of the court in the balance. So long as Bush is in charge, liberals have no reason to expect anything other than that his judicial appointments will be Federalist Society types. (Certainly the folks who run that shop consider Roberts one of them.) Instead, perhaps the best we can hope for is clarity in the matter—for a nominee whose ideological bent is clear, and for a fight that makes plain what the right is after in its crusade to capture the courts. For Democrats, the brutal truth is that, when it comes to judicial politics, in the short run all is lost; the long game is everything. And to win that game, engaging in another Bork-style imbroglio may be not only unavoidable but essential.

No one, of course, would take greater umbrage at that assertion than Bork himself, who recently graced a National Press Club luncheon down in Washington. Despite his lingering bitterness over the fate that befell him, he was engaging, frank, and funny. Unlike Roberts, Bork defended the Federalist Society: “The ultraliberals’ description of [it] as some form of right-wing conspiracy,” he cracked, is “on the veracity level of the Protocols of the Elders of Zion.” And he offered a few pieces of hard-won wisdom to future nominees: “Don’t write or say anything about the Constitution . . . Don’t commit your vote at the hearings on any issue . . . Don’t make it obvious that you think some of the senators’ questions reveal that they don’t have a clue about the Constitution.”

With those three admonitions, Bork codified the approach that Roberts took in his testimony. For every apparently straightforward declaration, there was a loophole large enough to accommodate a Hummer limousine. Repeatedly he suggested that he agreed with past rulings, but often did so employing weasel words made notorious by Clarence Thomas: “I have no quarrel with that.” Then there was his bald assertion, “I am not an ideologue”—a claim that, like Bill Clinton’s legendary “The president is relevant,” suggests by its very use reason to be doubtful.

By the end of the hearings, Democrats were befuddled. “It was frustrating,” says People for the American Way president Ralph Neas. “He did a great job of creating the illusion of candor.” Further muddying the waters was Roberts’s cultivation of friendships across the partisan aisle: “I don’t know how he found the hours to have so many lunches with so many members of the Democratic Establishment.”

And so, inevitably, in the days before the Judiciary Committee vote last Thursday, Democrats fell into a fit of hand-wringing that was epic even by their standards. (Most flagrant was Chuck Schumer, for whom thoughts of potentially supporting Roberts were apparently dashed by Mayor Michael Bloomberg’s declaration of opposition. As one liberal strategist said to me, “There was no way Chuck was going to end up to the right of a Republican.”) Predictably, when the vote arrived, the committee’s Democrats split, with five against and three in favor—suggesting that, in the final Senate tally, as many as twenty Democrats may wind up backing Roberts. “The theory is that, by giving Bush this victory, we’re in a better position to fight him on the next one,” this same strategist explained.

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