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Monday, December 09, 2019 {{ new Date().getDay() }}

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

Nocera believes that the liberal characterization of Bork during his nomination battle as “a right-wing loony” was transparently unfair, but his literary output suggests otherwise.

Bork’s theory of “originalism” — that judges should interpret rules of law, including the Constitution, based on the intentions of those who wrote them — is close to a truism. No judge admits to just sticking values and beliefs willy-nilly into the Constitution. Among the ambiguities that require interpretation is precisely the question of how you interpret the ambiguities. Equal protection of the laws? Cruel and unusual punishment? There is no machine that can input these majestic but vague phrases and spit out certain and indisputable meaning. And Bork’s theory of judicial restraint had some convenient exceptions. Affirmative action? Unconstitutional. Independent prosecutors to investigate executive branch crimes? Unconstitutional — at least when the president is a Republican.

Maybe Bork is right about some things. The point is that his theory of when you say yes and when you say no is complicated and subject to debate, just like everybody else’s. He hasn’t got it all figured out. There certainly is no evidence to support Nocera’s cheery speculation that Bork would have been a restraining influence on right-wing lunacy at the Supreme Court because he is so terribly principled.

Bork’s own favorite talking point has always been that because of his rejection, presidents would henceforth nominate people with little or no “paper trail” of difficult opinions that can be turned against them. He might have been describing the most recent court appointment, Elena Kagan, widely acknowledged as brilliant but a scholar of the dry topic of administrative law. Even with little to work with, Republicans did their best to paint Kagan as a left-wing loony. Or he might have been describing Clarence Thomas — another justice with no paper trail.

If future presidents are going to continue the new tradition of nominating justices whose ideologies they think they know and like, the Senate will have to start a new tradition of insisting that judicial nominees reveal their beliefs about the Constitution in detail. They still could lie, or change their minds, but embarrassment can be at least a mild deterrent.

An Earlier Source

Joe comes close to conceding that Republicans do the nasty thing better than Democrats. He simply insists that Democrats started it, with Bork in 1987. I think you have to go back almost a decade further: to NCPAC or “Nick-Pack” — short for the National Conservative Political Action Committee.

Founded in 1975, NCPAC flowered in 1980, targeting six incumbent Democratic senators and defeating four of them, including former Democratic presidential nominee George McGovern. Exploiting a 1976 Supreme Court ruling that “independent expenditures” on behalf of a political candidate are protected by the First Amendment — quite an “activist” constitutional interpretation, by the way, though Bork endorses it — NCPAC was a pioneer in the techniques of raising money through vicious and often dishonest direct-mail packages, and used the proceeds to fund nasty attack ads on the radio.

Of course, 1980 was also the year Reagan was elected president, which may have had some impact on the Senate campaigns as well. But you could make a case that of the two developments, NCPAC and Reagan, it is NCPAC that had the bigger influence on future developments in American politics.

NCPAC’s founder, Terry Dolan, was a once-familiar type: a closeted gay man, politically conservative, wrestling with his inner demons on the public stage. He did a lot of damage before dying of AIDS in 1986, at 36.

(Michael Kinsley is a Bloomberg View columnist. The opinions expressed are his own.)


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