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McGUIGAN: Biden was for Bork before he was against him

By   /   October 12, 2012  /   1 Comment

By Patrick B. McGuigan | Oklahoma Watchdog

Patrick B. McGuigan

OKLAHOMA CITY — When Vice President Joe Biden took a stab at Robert Bork in Thursday’s vice presidential debate — referring to him and Justice Antonin Scalia as “far right” and chiding Republican presidential candidate Mitt Romney for making Bork an adviser on judicial issues — it brought back several memories, including this: Biden was for Bork before he was against him.

President Ronald Reagan’s first nominee to the U.S. Supreme Court vacancy created when Justice Lewis Powell resigned in June 1987, then-U.S. Appeals Court Judge Bork seemed a lock for Senate confirmation. The term “Madisonian” — in tribute to the father of the U.S. Constitution, James Madison — was often used to characterize Bork’s approach to judicial construction.

Commenting on Bork’s stature and intellect in 1986, Biden said, “If Judge Bork were to replace (Justice William Rehnquist) or to replace … Scalia, I would have no problem. I’d have to vote for him, and if the (liberal) groups tear me apart, that’s the medicine I’ll have to take.”

At that time, Bork’s considered views on legal policy, from his scholarly writings and five-year tenure on the U.S. Court of Appeals for the District of Columbia, were deeply respected among conservatives and many liberals.

Biden voted for Bork and Scalia, when they were nominated to the appeals court. And, he was part of the 96-0 unanimous confirmation given to Scalia, when Reagan named him to the U.S. Supreme Court in 1986.

In the November 1986 elections, Democrats retook the U.S. Senate, making Biden chairman of the Senate Judiciary Committee.

As conservatives like me in the judicial reform movement encouraged Reagan to nominate Bork to take Powell’s place, Bork’s enemies assumed he would be the choice and were organizing a massive campaign. The left captured the momentum early in the Bork confirmation process and never really lost it.

Then-U.S. Sen. Biden changed his tune, declared he did not want the “balance” of High Court altered, and became a leader as Senate Democrats plowed what George Will called “fresh ground in the field of partisanship.”

On the morning of July 2, 1987, the Delaware solon met with a quartet of anti-Bork activists and promised to do everything in his power to defeat the nominee. However, he told them he would not make his opposition formal until after committee hearings.

One of Biden’s next steps in preparing for the Bork hearings was to assure the formal process did not begin until the fall, buying time for his allies as they organized the most expensive — $10 million — negative advertising campaign in the history of American judicial confirmations.

In consultation with specialists in visual media, Biden also changed the physical arrangement of the committee room, and the positioning of the broadcast media, so that television cameras focused on the nominee from an unfavorable angle.

When Bork appeared before the committee in September, the result was what has been characterized as “hearings, not listening.” Opposing senators presented lengthy and argumentative questions, with embedded “sound bites” designed to frame his views in the worst possible light.

Ignored were Bork’s responses citing case law and precedent, which to the Democratic majority became mere prelude to additional provocative questions — the equivalent of “Have you stopped beating your wife, yet?”

The assault on Bork peaked 25 years ago this month. A blizzard of negative ads overwhelmed the modest effort of supporters to reverse the television dynamic. The roughly $1 million Bork’s allies raised and spent was too little, too late.

In the end — on October 23, 1987 — Bork’s nomination was rebuffed 58-42, the worst defeat for a Supreme Court nominee in American history.

Analysts began to refer to what had happened as “a borking.” The verb “bork” entered the language — describing efforts to defeat a judicial nominee through sustained attacks on his character, background and philosophy.

Biden was a key player in the process that led to a collapse in the presumption of seriousness for judicial confirmation hearings, with broad implications for Senate comity. It became difficult for “originalist” nominees like Bork to address serious questions seriously. Careful politically correct answers became the norm.

Bracketing Bork’s ordeal was that of one of the greatest libertarian legal minds of the 20th century, University of San Diego law professor Bernard Siegan.

Siegan was a leading advocate of a “law and economics” philosophy devoted to rationality and prudence in regulatory law. After Reagan nominated Siegan to the Ninth U.S. Circuit Court of Appeals, Biden orchestrated a delay in confirmation hearings from February 1987 until the summer of 1988.

I labored unsuccessfully for the confirmations of Siegan and Bork, even as the polarization in judicial selection and confirmation intensified. Eventually I understood that Bork and Siegan lost not because their enemies misunderstood them, but because the philosophies of each represented fundamental threats to a judicial power consensus antithetical to liberty and democratic governance.

Those years gave me perspective, and balance, in assessing the Senate, legal culture, political ideology and judicial confirmation.

Ultimately, I wrote a book about the Bork fight, a day-by-day chronology of nearly four months, that distilled lessons from the confirmation fights of the 1980s.

Among those who read my book, “Ninth Justice,” was a former U.S. agency administrator, Circuit Court Judge Clarence Thomas.

When  Thomas was nominated to the High Court and his former employee — University of Oklahoma Law Professor Anita Hill — began to spread rumors about their relationship, Biden called Thomas to say “Judge, I know you don’t believe me but if the allegations come up I will be your biggest defender.”

In his book “My Grandfather’s Son,” Thomas wrote, “He was right about one thing. I didn’t believe him.”

Not taking Biden at face value no doubt contributed to Thomas’ successful weathering of his own confirmation process. We’ll see how the 2012 version of Joe Biden plays, in 25 days.

NOTE: McGuigan is the author of “Ninth Justice: The Fight for Bork” (University Press of America, 1990) and editor of “The Judges War” (Free Congress Foundation, 1987). 

Contact bureau chief Patrick B. McGuigan at Patrick@capitolbeatok.com and follow him on Twitter @capitolbeatok.

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Patrick B. McGuigan is bureau chief for the Oklahoma City Bureau of Watchdog.org, and works from the press room at the state Capitol. He is also the editor of CapitolBeatOK, and Associate Publisher of The City Sentinel newspaper. In 2013, The Washington Post blog “The Fix” designated Pat one of the best reporters in Oklahoma. In addition to the Oklahoma Society of Professional Journalists, where he serves as state secretary-treasurer, Pat is a member of the National Press Club and the Tulsa Press Club.

  • LIBIntOrg

    Thanks for the article. Sadly, Scalia lost his way when he implied the innocent may be executed for judicial convenience in the eyes of many Libs.
    For info on people using voluntary Libertarian tools on legal-policy issues, please see http://www.Libertarian-Institute.Info ….

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