The Corner

Borking

Jonathan Chait defends the Borking of Robert Bork on the ground that Bork has proven himself to be, “in fact, a right-wing nut.” But if Borking means “to attack with unfair means,” then Chait is doing it as much as he is defending it.

Chait notes “Sen. Ted Kennedy’s claim that ‘Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters,’ etc., etc.” Chait defends the claim because “Bork had criticized the portion of the Civil Rights Act banning discrimination in public accommodations, argued against extending the equal protection of the 14th Amendment to women, took an extremely restrictive view of free speech, and so on.”

But what struck most conservatives as unfair about the Kennedy attack was that it implied that Bork did not merely want to allow racially-segregated lunch counters, etc., but actually wanted racially-segregated lunch counters. That’s the natural reading of “Robert Bork’s America.” (Note that Bork didn’t want to “allow” these things in the same way. Bork made a libertarian policy argument–in the New Republic, if I recall correctly–against the Civil Rights Act but would not have struck it down as a judge; he would have voted to overturn Roe but was, at the time of his confirmation hearings, pro-choice himself. So Kennedy wasn’t attacking either Bork’s actual jurisprudential views or his actual policy views, but mixing and matching for convenience and then suggesting that Bork wished the worst possible outcomes from either.)

Many of Chait’s examples of Bork’s alleged right-wing nuttery will not strike other observers as nutty–for example, Bork’s concern over the role of foreign opinion in recent Supreme Court decisions strikes me as eminently defensible. (For the purpose of this parenthetical, let’s assume that Bork is a nutcase. Note that Chait’s argument conflicts with the previous liberal line on Bork, that his rejection by the Senate had made him bitter and turned him into a nutcase. If so, then it can’t be assumed that his opinions on the Court would have looked like his post-rejection writings.)

None of the Bork quotes given by Chait seem nearly as Chait’s own over-the-top comparison of Bork to Alger Hiss: “In many ways, the Bork debacle resembles the case of Alger Hiss . . .” Sure, “in many ways,” except for the small detail that Bork wasn’t a spy for an enemy power.

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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