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The Man Who Couldn’t Be Borked
A Supreme face saver for President Bush.


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Let me just say at the outset that Harriet Miers seems to be a very nice lady. Moreover, it wouldn’t surprise me to learn that she’s a very good lawyer. In fact, I believe that there’s a place for Harriet Miers at the Supreme Court. But not on the bench. As I understand it, the main argument in favor of elevating Miers to our nation’s highest Court is that she might turn out to be a good associate justice. Which, surprisingly enough, is also the most persuasive argument in favor of elevating me to the Supreme Court–the statistically measurable chance, however slight, that I might not turn out to be a complete disaster. Just the same, one wonders if we might do better.

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The growing sense that Miers will either be forced to withdraw or will fail to win Senate confirmation is generally seen as a looming disaster for a White House that, to be charitable, could use some good news right now. But the argument can be made (and, I hope, is about to be) that a Miers’s rebuff will prove not a setback, but a golden opportunity for the president to shore up his fortunes on several fronts. If he makes the right choice here, President Bush can win back the hearts and minds of his base (and then some), fortify his arsenal in the war on terror, lay the foundation for an outstanding judicial legacy, and put right an historic injustice of epic proportions, all in one fell swoop. Plus, there’s at least a 50-50 chance that Ted Kennedy’s head will, at long last, finally explode.

But in order to grasp this nettle of opportunity President Bush must be willing to cast aside the focus-grouped timidity that gave us Miers (and, let’s be honest, Roberts) in favor of the bold approach more suited to the lame duck president he happens to be. The George W. Bush we elected understands that the essence of statesmanship is doing the right thing knowing that you’ll be vilified for doing so. This historic juncture is no time for small-ball, sacrifice bunt, move-the-runner-over tactics, Mr. President. There is, in fact, virtually no tomorrow in terms of your remaining presidency, your legacy, and oh, yes…the future of the republic. This is no time to take a knee. Rather, it’s time for you to hobble up to the plate and crank one out of the park just like Kirk Gibson did in the 1988 Series. And with all due respect, Mr. President, here’s how you do it: Renominate the Honorable Robert H. Bork to be an associate justice of the United States Supreme Court.

Lest there be any doubt, this suggestion to resubmit Bork’s name for Senate consideration is no satirical flourish. I am absolutely, positively serious about this. Bork was abundantly qualified to sit on the Supreme Court when he was nominated (and rejected) in 1987 and he remains so today because he is widely acknowledged as one of the foremost legal scholars in the United States. As opposed to Harriet Miers, widely acknowledged as one of the foremost legal scholars in her immediate family.

Not to sound like an elitist or anything, but you’d think that sheer judicial and scholarly brilliance would be reason enough to put Bork on the Court. As it turns out, there are several other good reasons. Diversity, for one thing: If confirmed Judge Bork would become the first Supreme Court justice in history to bear an eerie resemblance to New Orleans blues legend Dr. John.

An even better reason is the people’s growing impatience with rampant judicial activism. We know this because the Democrats, in typical Orwellian fashion, have begun railing against conservative judges for their “activism,” i.e., their refusal to either tolerate or participate in acts of legislation from the bench. (The same way they started calling Bush and anyone else they didn’t like a “liar” after figuring out, post-Clinton and somewhat belatedly, that we don’t particularly like liars). Even his harshest critics will admit that Judge Bork is among the intellectual figureheads of the burgeoning anti-judicial activism movement. Whether they know it or not, anyone who was appalled by the Kelo decision, enraged by the “Under God” ruling, or offended by the various recent gay-marriage and partial-birth-abortion decisions is a kindred spirit of Judge Bork’s. And by any account, that’s quite a few people.

But by far the best reason to renominate Judge Bork is also beautiful in its simplicity: He is probably the only candidate who cannot, for lack of a better term, be “borked.” For those of you who don’t watch VH-1’s I Love The Eighties, to be “borked” means “to get on Ted Kennedy’s bad side when he’s really hung over.” Because, as the evidence will show, the Senate’s 1987 rejection of Robert Bork was the result of an unprecedented media smear campaign based almost entirely on sheer fabrications.

If your understanding of the charges that derailed Bork’s 1987 nomination was shaped by the accounts of the mainstream media of the day, it’s probably safe to assume that everything you think you know about Judge Bork is false. Briefly, Bork was accused of indifference to minority rights, women’s rights, and individual rights. To the first, Bork was falsely accused of disagreeing with Brown v. Board of Education, a ruling he supported. He never once advocated imposing racially based poll taxes or literacy tests for minority voters, as his critics have claimed. As solicitor general he never once took a position on a case that was less favorable to a minority cause than the Supreme Court’s eventual ruling. As an appeals-court judge Bork ruled with the majority on 44 of the 46 cases he heard involving labor law. With regard to women’s rights, as solicitor general he never took a position less favorable to women’s rights than that eventually adopted by the Supreme Court. A particularly stubborn charge was that Judge Bork had ordered the forced sterilization of women in an unsafe workplace–a neat trick, as the sterilizations in question were all voluntary and all took place four years before Bork first became a judge. Naturally the main criticism of Bork was that he was (and is) highly critical of Roe v. Wade–a perspective shared, it must be noted, by numerous other legal scholars holding both pro-life and pro-choice viewpoints.

In sum, charges that Bork was a dangerous radical so far from the judicial mainstream he would bring back slavery and forced abortions made for some entertaining stemwinders by the likes of Ted Kennedy and Howard Metzenbaum, but they had no basis in fact. Which would explain how Bork came to be unanimously confirmed by the full U.S. Senate twice (solicitor general, 1973; D.C. Appeals Court, 1982). Why Warren Burger described Bork as the most qualified candidate he had ever seen for the Supreme Court. Why when both of them served on a lower court Robert Bork and Antonin Scalia ruled the same way on 98 percent of the cases they heard. And why justices John Paul Stevens and Byron White both endorsed Bork’s nomination to the Supreme Court.

As a practical matter, Bork’s failed 1987 confirmation attempt would serve to immunize him from the bulk of the scurrilous accusations that would undoubtedly be dredged up again. Like many a candidate before him Bork could brush aside some of the more specious allegations with a simple, “I’ve already responded to that charge; next question.” And to help him with the more persistent charges Bork would find himself with an ally which didn’t exist in 1987: the New Media. Pajama-clad bloggers would make short work of the more preposterous charges, e.g., that Bork wanted to bring back segregated lunch counters. Before long the really egregious whoppers about his judicial philosophy or record wouldn’t be worth the forged memos they were printed on. In 1987 the Washington Post printed four negative articles about Bork for every positive one–which was relatively restrained compared to the six negative pieces on Bork that network TV ran for every positive one. The bad-to-good ratio of Bork pieces run by CBS News during that era, meanwhile, was more like eight to one–and this when CBS News was still considered a legitimate news organization. Imagine how much those good-to-bad ratios would be altered today now that the Internet, talk radio and FOX News are in the picture.

More to the point: As so many others have already observed, let’s name someone to the Supreme Court whose nomination is guaranteed to trigger a national conversation on the proper role of the judiciary– it can only help the conservative cause. Let’s demand that Judge Bork be allowed to take his case against judicial activism directly to the American people. Let’s have Judge Bork, on live network TV, attempt to enlighten former prosecutor Arlen Specter on the basic elements of the First Amendment. Granted, Bork’s efforts to do so in 1987 proved unsuccessful, but America is about giving people second chances. Let’s demand a grudge match–no, make that a caged, single-elimination death match, on pay-per-view–between the intellectually towering Bork and bombastic constitutional illiterates like Chuck Schumer and Joe Biden. Imagine just how deeply satisfying a televised exchange such as the following might be:

Senator Feinstein: “Judge Bork, what are your views on the general right to privacy?”

Judge Bork: “Senator, that’s none of your business. Ha, ha! Get it? ‘None of your business’! Seriously, do you have any real questions or can I get back to making fun of Chuck Schumer?”

With the right kind of exposure this is exactly the sort of donnybrook that could bring the Sean Penns, the Michael Moores, and the other MoveOn.Org types out of the woodwork–that is, at least we hope it would. Let’s see if that crowd is as effective against Judge Bork as they were against President Bush in the last election. In one bewildering coup de grace knew it we’d have an awesome new justice on the Supreme Court and President Bush’s approval numbers would start to creep up again. Short of having Karl Rove capture Osama bin Laden after saving Nick and Jessica’s marriage, I think putting Judge Bork on the Supreme Court is the president’s best image-rebuilding option at this point.

Some of you are probably thinking, “Bring back that old Eighties relic Bork? That’s crazy! That would be like…I don’t know, like dragging Walter Mondale out of retirement as a last-minute replacement in a Minnesota Senate race. What, they already did that? O.K., then…it would be like luring Frank Lautenberg back into…what? You’re kidding! O.K., two bad examples. But I still say renominating Bork to the Supreme Court is almost as crazy an idea as letting Robert Byrd run for reelection again.”

Maybe so. And yet, stranger things have happened.

Ned Rice is a staff writer on the new and improved CBS talk show The Late Late Show with Craig Ferguson. Rice is also an NRO contributor.



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