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unfit to serve?

By Diogenes (articles ) | Jul 23, 2005

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would have to 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.
       -- Ted Kennedy, July 1, 1987

Pity the poor Democrats on the Senate Judiciary Committee, obliged to keep a straight face while pretending to conduct a good-faith inquiry into the "suitability" of Supreme Court nominee John Roberts! It has to be tough. The Confirmation Hearings were transformed into a laughingstock -- albeit in a vein of black humor -- back in 1987, when the SJC assailed Reagan nominee Robert H. Bork as unqualified to serve on the Supreme Court. Their interrogation was so grotesque, and predicated on such a plunge into intellectual whoredom, that the vocation of senator now ranks beside that of a professional wrestler or those refs at the Harlem Globetrotter games. Perhaps a recap will explain why.

From 1982 to 1988, Robert Bork served as judge of the U.S. Court of Appeals for the District of Columbia Circuit. In that capacity, he wrote a large number of opinions for cases that were later contested and heard by the Supreme Court. In every instance in which Bork had written the majority opinion, the Supreme Court upheld his decision. In several instances, moreover, in which Bork had written the dissenting opinion for the Court of Appeals, the Supreme Court reversed the decision of the lower court and adopted Bork's opinion as its own. In judicial terms, that's batting better than a thousand.

There's no escape from the logic of the matter: if Bork was bad, a fortiori the Court that bought into his badness was worse. The possibilities were these: 1) Bork bad, Court bad. 2) Bork good, Court good. 3) Bork good, Court bad (but remarkably lucky guessers). The one situation that could not possibly obtain is that Bork was incompetent or fanatical while the justices who agreed with him were sound.

Those who deemed Bork unfit for the job of Supreme Court justice, then, were missing the point by opposing his nomination. Had they truly believed what they said about his unfitness, the reasonable course of action would be to put the entire sitting Supreme Court in a weighted burlap sack, row five miles offshore, and throw the lot overboard. And the Senate Judiciary Committee who approved the justices who approved the mess that Bork built should have been accorded the same treatment.

But no puppy drownings are called for, because no one really thinks the Senate Confirmation hearings are remotely concerned with professional fitness. You may view the hearings as a farce or a fraud, according as you measure them against their face-value constitutional purpose or their actual political consequences. Jurisprudence, as such, is irrelevant. The game will be for the Left to string out the process while scrounging for ammo and building enough public antagonism against Roberts to permit pro-abort Republicans (like Arlen Specter and Olympia Snowe) to cross party lines and vote him down. Any weakness might do the trick: an underpaid nanny, a DUI citation, a sexist or racist joke told while in college. The flaw doesn't have to be big and it doesn't even have to be true -- provided enough of the public can be made to believe it's important before the confirmation vote takes place.

"When one has once given Evil a lodging," runs an aphorism, "it no longer demands that one believes it." Those politicians who bought votes by embracing the falsehoods necessary to profess a right to abortion cannot be expected to balk at the further falsehoods needed to do down their enemies. After Kennedy's mendacious diatribe that kick-started the vilification campaign, Bork paid the senator a courtesy visit in his chambers prior to the commencement of the hearings. An obviously ill-at-ease Kennedy told Bork, "Nothing personal."

It is, though.

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