Kavanaugh and Bork

The most amazing feature of the hearings about to begin on the nomination of Judge Brett Kavanaugh to the Supreme Court is how uncannily the issues echo the issues in the fight over Judge Robert Bork. When President Reagan nominated Bork to the Supreme Court, the judge was sitting on the same Court of Appeals for the District of Columbia Circuit that Judge Kavanaugh sits on today.Bork’s confirmation was foiled by a notoriously demagogic attack led by Senator Ted Kennedy, who argued that Bork was “outside the mainstream” — a charge as illogical as it was insidious. Bork’s views, after all, were embraced by, in Ronald Reagan, a president who had recently won a second term by carrying 49 of the 50 states. How out of the mainstream could Bork’s views have been?Senator Kennedy claimed that Bork’s willingness, when he was solicitor general, to carry out President Nixon’s order to fire the Watergate special prosecutor, Archibald Cox, was “sufficient by itself” to “disqualify” him. Forget that some constitutionalists reckoned it was among Bork’s finest constitutional hours. “The man who fired Archibald Cox,” Kennedy caviled, “does not deserve to sit on the Supreme Court.”Well, déjà vu all over again. Here we are, 31 years later, and the curtain is about to go up on a confirmation hearing in which one of the issues will be precisely the nominee’s views on firing special prosecutors. Judge Kavanaugh’s doubts about the constitutionality, never mind the recklessness, of special prosecutors are, we would argue, precisely one of the things that puts him in the mainstream.Then again, too, the question of abortion will also roil the hearing on Judge Kavanaugh, just as it did for Bork. The way Kennedy put it, back in the day, was to warn that “Robert Bork’s America” was “a land in which women would be forced into back-alley abortions.” Several Democrats have been waving coat hangers today, trying to tar Judge Kavanaugh with the same charge.In a reprise of the Bork drama, Mark Pulliam, writing in City Journal, notes that over five days of grilling, Bork answered “matter-of-factly” and sought to explain his view of judging “fully.” That didn’t stop the ilk of Kennedy, who suggested that in Bork’s America “blacks would sit at segregated lunch counters” and “rogue police” would be breaking in doors.Bork’s defeat, Mr. Pulliam reckons, was a “watershed event in judicial politics.” It defeated a conservative realignment of the court, and Justice Anthony Kennedy ended up in the vacant seat. Since then, Mr. Pulliam argues, the judicial-confirmation process has been “forever transformed” into an “ideological gauntlet.” Which is precisely why, in our view, so many of the high octane issues from that era vex us still.And why the hearings that open tomorrow are so important. It is sometimes said that Bork was defeated on a party-line vote. Six Republicans nonetheless joined with Kennedy and another demagogic Democrat, Joseph Biden, to defeat Bork. One big question now is how many Democrats will cross the aisle to display at least some bipartisanship on Judge Kavanaugh and end the feud that began, on so many of the same issues, with Judge Robert Bork.

Kavanaugh and Bork

Kavanaugh and Bork

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