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Exactly 24 years ago today, the U.S. Senate defeated Robert Bork’s nomination to the Supreme Court. As far as the New York Times’s Joe Nocera is concerned, it was an ugly turning point in American politics.
His nomination battle is also a reminder that our poisoned politics is not just about Republicans behaving badly, as many Democrats and their liberal allies have convinced themselves. Democrats can be — and have been — every bit as obstructionist, mean-spirited and unfair.
I’ll take it one step further. The Bork fight, in some ways, was the beginning of the end of civil discourse in politics…. The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one.
Nocera’s larger point, in fact, is that mean ol’ liberals are largely responsible for the toxicity and breakdowns in Washington. “The next time a liberal asks why Republicans are so intransigent,” the columnist concludes, “you might suggest that the answer lies in the mirror.”
It’s hard to overstate how remarkably wrong this is. Indeed, nearly every paragraph in Nocera’s piece includes a fairly significant error of fact or judgment.
The columnist argues, for example, that Bork was an intellectual giant who was unfairly labeled as an “extremist.” I suppose it’s a subjective question — an extremist to one is a moderate to another — but I’d note for context that Bork had endorsed Jim Crow-era poll taxes, condemned portions of the Civil Rights Act banning discrimination in public accommodations, and argued against extending the equal protection of the 14th Amendment to American women, among other things. Nocera may be comfortable with Bork’s ability to justify these positions as a matter of legal theory, but considering Bork’s conclusions as “extreme” seems more than fair.
Indeed, as recently as last week, Bork was still arguing that the Equal Protection Clause of the 14th Amendment doesn’t apply to women.
Nocera also suggests to the reader that it was Democrats who destroyed Bork. What the column neglected to mention is that Dems didn’t filibuster Bork’s nomination; they simply brought the nomination the floor. At that point, six Republican senators agreed that Bork was simply too radical for the high court.
Nocera sees the vote as an example of Democratic “obstructionism.” That’s silly. It wasn’t obstructionist and the vote wasn’t along party lines.
The columnist also argues this one ordeal poisoned the Washington well. But the Democratic Congress and the Reagan White House continued to govern and pass significant bills after Bork was defeated, as did President George H.W. Bush with a Democratic Congress. This was not some kind of unhealed wound that made bipartisan cooperation impossible.
Nocera goes on to argue that Bork’s opposition to Roe v Wade is somehow comparable to Ruth Bader Ginsburg’s questions about the ruling’s rationale, but to equate the two is just foolish.
The columnist’s understanding of history related to judicial-nominee fights is woefully incomplete.
There have been plenty of modern turning points that have created the breakdowns of our political system. The Gingrich Revolution and the far-right takeover of the Republican Party seems like the big one to me, as do the unjustified impeachment of a Democratic president, the dubious legitimacy of the 2000 presidential election, the Bush White House’s post-9/11 strategy of dividing the country for GOP gain, the Republicans’ scorched-earth strategy of the Obama era, etc.
But the bipartisan opposition to Bork is the real culprit? Please.
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c u n d gulag on October 23, 2011 9:00 AM:
And to think, I had such high hopes for Nocera.
Well, not really, but I expected better than I’ve gotten.
Nocera’s a few years older than me, and even without checking, I can remember how big the Bork nomination was, and how awful a choice he was for a lifetime position, and how important blocking him was. This column makes it seem like Joe was in a box during those Reagan years.
Take one look at Bork from those hearings. You can see by his haughty, ‘I’m smarter and better than all of you put together,’ arrigant prick demeanor that he would be spending the rest of his life totally enjoying undoing decisions that were more Liberal than Dred Scott. And anything the Warren Court passed would be #1 on his hit parade.
Nocera makes him seem like he’s part Santa Claus, and it was the terrible Liberals fault for starting this mess because we didn’t want to give a vicious sexist/racist a lifetime position on the SCOTUS – largley because the quota for that position was aleady filled by William Rehnquist.
And while we were able to keep Bork off, Clarence Thomas is with us for the duration of his life, being the 5th vote, just so he can ‘stick it’ to anyone who ever dared infer that he was a traitor to his race and the economic class he was born into. And that this pathetic man, instead of helping others, relishes in afflicting those already afflicted. Especially if they’re like him. He’s a vile poster-child for self-hatred.
Mr. Nocera – and Bork makes Thomas look like Thurgood F’in’ Marshall.
pol on October 23, 2011 9:03 AM:
And Bork is now advising Mitt Romney.
Danp on October 23, 2011 9:05 AM:
I would disagree with Nocera in either case, but I would love to know why he chose to focus on Bork rather than Clarence Thomas.
kevo on October 23, 2011 9:11 AM:
I may just be me, but Joe Nocera seems to have pulled this storyline out of the canyons of his own mind that lie down hill from mountain top mining operations flooding poor ol'Joe's mind with mercury sludge and many more toxins not healthy for our body politik!
Robert Bork was (and perhaps still is) an embarrassment to our political culture, and the elected officials at the time made the right call.
Joe Nocera is an idiot, and a not-very-good-myth-maker! -Kevo
berttheclock on October 23, 2011 9:13 AM:
Interestingly, Danp mentions Clarence Thomas. Arlen Spector was one of the six Republican Senators who voted against Bork, but, Spector made a specter of himself attacking Anita Hill and voting for Thomas.
The other Republicans were John Chaffee, Lowell Weicker, Bob Packwood, John Warner and Robert Stafford.
berttheclock on October 23, 2011 9:15 AM:
Nocera is channeling George Will and William Safire.
DisgustedWithItAll on October 23, 2011 9:19 AM:
I've already run into this dumbass "the Dems started it" argument elsewhere. It's beyond stupid. The right is just going to be stupid and grasp for straws. What do these two arguments have in common?:
1) Dems started all the partisanship with the Bork nomination.
2) CRA, Fannie & Freddie, and Barney Frank caused the Lesser Depression.
Answer: It's the right grasping at straws to give their faithful useful idiots something to rationalize their stupidity.
walt on October 23, 2011 9:24 AM:
The liberal fight against Bork, like Thomas happened out in the open AS IT'S SUPPOSED TO. The right-wing fight against any and all things progressive usually happens with parliamentary legerdemain. For this, right-wingers have invented yet another theory about the Founding Fathers ("they wanted gridlock").
Our system of government is under attack before our eyes and Nocera plays the useful idiot to a party of nihilistic revolutionaries.
Elizabelle on October 23, 2011 9:26 AM:
Joe Nocera's a good addition to the NY Times op ed page, but when he gets it wrong -- as he did here -- he really gets it wrong.
You will find better arguments from his readers comments. They don't agree with his thesis either.
http://community.nytimes.com/comments/www.nytimes.com/2011/10/22/opinion/nocera-the-ugliness-all-started-with-bork.html?sort=recommended
Take it away, reader SAR of Palo Alto:
SAR: "You came up with one vote where the Dems were childish and irresponsible. From this one vote, you've made the claim that both sides, the Dems and Reps, have been at fault for our dysfunctional governance. That claim doesn't hold water.
"In the 1990s, the Reps led by Gingrich shut down government. Also in the 1990s, the Reps spent 40 million dollars of taxpayer money on a witch hunt to find anything they could to impeach Clinton (eventually, they found Monica Lewinsky). From 2000 on, they've questioned the patriotism of Obama and even his legal right to be president. Just this year, the Reps played chicken with the full faith and credit of the US.
"There is no equivalency between the Reps and Dems on the issue of responsible governance. For 20 years, the Reps have consistently decided that the response to having a Democratic president is zealotry and the disruption of the basic workings of US government. This is the Reps m.o., not that of the Dems. It's a sorry track record that is destructive, assumes that Democrats are unfit for the presidency, and should be condemned."
me: we have to fight the "false equivalency" meme every time it appears. False is false.
Rich Horton on October 23, 2011 10:05 AM:
Are Democrats and Republicans really nothing more than bratty children in the back seat of a long car trip yelling "He started it!" back and forth at one another?
The least you could do, if you want to be anything OTHER than a narrow minded ideologue, is to offer an objective measure that would support your point. Merely falling back on subjective perspectives (be they liberal or conservative) isn't going to get anyone anywhere.
Of course, if the echo chamber is all you ever aspire to... well, enjoy.
skeptonomist on October 23, 2011 10:05 AM:
Nocera has been basically liberal in the past but has got some strange bees in his bonnet since being promoted to the main opinion page of the Times.
Here's a turning point that went unnoticed at the time; the nomination of Scalia. He is not as radical as Bork, but his true views were not at all clear before he cleared the Senate. The way he was sneaked through probably alerted Democrats that they had to scrutinize nominees in order not to get "Scalia'ed". Hiding the views of nominees certainly did not begin after Bork.
biggerbox on October 23, 2011 10:11 AM:
Nocera conveniently forgets that before Bork could be rejected, he had to be nominated.
It wasn't a Democrat who chose to nominate a man with clearly polarizing conservative views and a combative attitude to replace a moderate on the Court. It wasn't a Democrat who picked a nominee who had stated a desire to roll back decisions of the Warren and Burger courts. It wasn't a Democrat who picked the guy who didn't resign in the Saturday Night Massacre. It was a Republican who asked Congress to give a man who opposed much of what progress had been made over the previous two decades a lifetime job undoing that progress.
It always amuses me that when right-wingers go off on how the Democrats poisoned the well with the Bork hearings, they ALWAYS somehow forget what a huge "F*** you" nominating him in the first place was. There were plenty of potential nominees who weren't so radical, like, for example, Anthony Kennedy, who eventually got the job.
Okie on October 23, 2011 10:16 AM:
It was Newt Gingrich who poisoned the well. In his day, he was the most bitter partisan who ever came along.
Newt changed American politics forever. And not for the better.
majun on October 23, 2011 11:24 AM:
I read Nocera's column and I've read a lot of the criticism of it since. What amazes me is that nobody's brought up the fact that Bork was the guy who fired Archibald Cox. His theories of the unitary executive were very radical and allowed him to carry out orders that other, more principled superiors refused to. So six Republicans voted against him in the era of Reagan, and the 11th Commandment. I think they voted against him because of what he did in the "Saturday Night Massacre." Which, by the way, did, indirectly, lead to the poisoned atmosphere we have today. Without Bork there would have been no Independent Prosecutor statute. Without the Independent Prosecutor Statute the obsessive investigations of Clinton would never have taken place and the wild radicals of the right would never have become so emboldened. So, Nocera was sort of right. In a left handed way.
beb on October 23, 2011 11:35 AM:
Actually I think that Nocera is right that the vote against Bork poisoned the well for bipartisanship, but you have to think of this as a mother would towards her two year old child. Day after day she goes along with her child's request because they don't seem to matter, then one day he asked for a can of beer instead of his sipppee cup of milk. She says no and he flings a tantrum. And day after day he never forgives her for refusing him the thing he wanted.
The Republicans wants Bork and when they didn't get him could not forgive the Dems for opposing him. And they have held a grudge against the Dems ever since. Not an ideological opposition to Democrat ideas but a visceral grunge against the Democratic Party.
So I think Nocera is right that Bork is when the Repubs switched from opposing the Dems to hating them. But as Steve notes the issue wasn't that the Dems had acted unfairly towards Bork. The Repubs, after getting their was on so much were angered when they couldn't get their way on Bork.
Sean Scallon on October 23, 2011 11:49 AM:
"What has happened to Robert Bork is wrong. The man's been trashed in our house. Some of us helped generate the trashing, others yielded to it, but all of us are accomplices."
- Sen. John C. Danforth, Missouri.
I figured if you were going to quote the man on some things you should quote him on other things as well. While I would contend going back in time and approving Judge Bork's nomination would make us all love each other more than 25 years into the future, it is also true the nominating process for Supreme Court justices would not be the farces that they are now.
Of course we haven't begun discussion on looking at a man's video rental record yet, but that's another piec to the puzzle as well.
Joe Friday on October 23, 2011 12:09 PM:
Bork borked Bork.
zeitgeist on October 23, 2011 12:12 PM:
The Bork fight, in some ways, was the beginning of the end of civil discourse in politics….
Seriously? Have memories really gotten so short in this country?
Or maybe Nocera thinks that breaking in to your opposing campaign's headquarters to try and impact the election and then lying about it is a "civil" approach to politics. Or that drumming good and loyal public servants out of their jobs with false accusations and innundo that they are Communist infiltrators is "civil discourse."
But for the rest of us with a functional knowledge and sense of history, this "straight line" to the dysfunction we see now started long, long before the Bork nomination, and it started on the right.
dsimon on October 23, 2011 12:36 PM:
Benen writes: "I’d note for context that Bork had endorsed Jim Crow-era poll taxes, condemned portions of the Civil Rights Act banning discrimination in public accommodations, and argued against extending the equal protection of the 14th Amendment to American women, among other things."
I don't think Bork "endorsed" poll taxes; his position was probably that such taxes were constitutionally permissible. Likewise, I doubt that Bork personally supported discrimination in public accommodations. There's a difference between supporting/opposing a policy and determining whether a policy is constitutionally banned or allowed.
That being said, Benen is right that Nocera's column was factually and logically a mess. Nocera cites a few of Bork's positions that he says were politically unpopular but not legally "extreme." But that doesn't mean that there weren't other positions that were extreme, as Benen rightly points out. The rest of his analysis is spot on.
TCinLA on October 23, 2011 12:54 PM:
Someone is surprised when a drooling wingnut moron like Joe Nocera acts like a drooling wingnut moron??
smintheus on October 23, 2011 2:06 PM:
Funny that, in trying to pinpoint when hyper-partisanship took over in Washington, Nocera doesn't even mention Nixon...they guy whose minions, including Bork, have continued to befoul our national politics up until the present day.
Greg Wythe on October 23, 2011 2:31 PM:
Was it really too obvious for Nocera to blame it all on the 1984 House election challenge that had the Dems seat Frank McCloskey instead of Richard McIntyre?
I mean, I can't tell you how many times I talk to neighbors who are still fed up with that!
fafner1 on October 23, 2011 2:53 PM:
Bork openly campaigned for the supreme court, speaking widely for years in support of a wide range of right wing positions on the theory that a that as a partisan champion of right wing thinking, a Republican president would be forced to nominate him. He was right about this, but neglected to consider that the senate might reject his sorry extremist ass.
Alan on October 23, 2011 3:09 PM:
This guy is a business writer. He obviously knows nothing about politics.
Jamie on October 23, 2011 10:38 PM:
Didn't they do in Bork because he fired Archibald Cox. It all comes back to the fact that Nixon was paranoid.
Sempringham on October 24, 2011 8:22 AM:
Humans have a tendency to believe that nothing that happened before they arrived on the scene has any bearing on current events. Joe means well, but he starts the animosity at the Bork hearing only because that's as far back as he can remember.
If he were a better student of history, he would know it actually began when conservative South Carolina senator Preston Brooks used a cane to beat liberal Massachusetts senator Charles Sumner to within an inch of his life on the Senate floor in 1856.
I'm still angry about that, and that anger justifies anything I might do or say.
Gov't Mule on October 24, 2011 10:01 AM:
One point that Nocera completely ignored was Bork's role in the Saturday Night Massacre. Nixon ordered his Attorney General Elliot Abrams on Oct. 20, 1973 to fire Watergate special prosecutor Archibald Cox. Abrams refused and resigned in protest. The assistant AG, William Ruckelshaus also refused to fire Cox, and he too resigned. Bork was the next highest ranked member in the DoJ and he DID carry out Nixon's orders and fire Cox.
IMO Bork's radical views didn't even to be mentioned to show how unworthy he would be as a member of SCOTUS. How he handled the Saturday Night Massacre AUTOMATICALLY disqualified him because it proved he would put partisan politics before the law. That he had the most radical conservative legal views of any nominee to SCOTUS was just another rationale for voting him down.
Herschel on October 24, 2011 4:48 PM:
Attorney General Elliot Abrams
Um, not exactly. Elliot Abrams was among the criminals of the Iran-Contra affair. It was Elliot Richardson who refused to fire Cox.