Smart. Sharp. Funny. Fearless.
Wednesday, September 28, 2016

Reagan, Not The Left, Started Washington's Partisan Fires

The grown-ups (i.e., voters) will tell you, of course, that they don’t care who started it: They want it to stop. But there can be no truce in the nastiness of recent years between Democrats and Republicans until Joe Nocera apologizes for his New York Times column last week blaming it all on the Democrats.

Joe, an old (and, I hope, not former) friend, says it all started in 1987, when Democrats in the Senate rejected President Ronald Reagan’s nomination of Robert Bork for a seat on the Supreme Court. Joe is right that the campaign against Bork was based on his ideology, not his qualifications (he was a professor at Yale and a federal appeals court judge), and that it got nasty. And he’s right that this was something new in Supreme Court nomination battles, though Bork was far from the first presidential nominee to be rejected. But it was Reagan, not the Senate, who changed the unwritten rules by nominating such an ideologue in the first place. Reagan chose Bork based on his ideology, not his alleged brilliance. The Senate was entitled to judge him by the same standard.

To this day, many conservatives cling to the view that Bork (still alive at 84) was a uniquely brilliant scholar with a theory of constitutional interpretation that is beyond dispute. This is a fantasy. At the time of his nomination, Bork had not written a single book about the Constitution. His entire oeuvre consisted of a few contradictory law review articles, pamphlets and lectures, along with a good book about antitrust. Since then, he has written a couple of books and a few booklets with titles like “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” “Coercing Virtue: The Worldwide Rule of Judges” and “A Country I Do Not Recognize: The Legal Assault on American Values.”

Unfair, or Not