Milestones: 20 Years of "Borking"

Shaun Mullen over at TMV sheds a lonely tear on the anniversary of Robert Bork's rejected nomination to the Supreme Court. I'm sure he'll understand if I reserve my sympathy for a more deserving figure.

While Bork's nomination was in many ways a sign of nomination processes to come, his selection was ill-advised from the very beginning. Bork's role in the Watergate scandal assured the Reagan White House they were going to be in for a fight with Senate Democrats who had just regained the majority on the heels of the Iran-Contra scandal:

Robert Bork was Nixon's solicitor general and became acting attorney general during the "Saturday Night Massacre." Nixon, fearing that Special Prosecutor Archibald Cox was close to uncovering the truth about his involvement in Watergate (Cox was requesting tapes of Oval Office conversations), ordered then-Attorney General Elliot Richardson to fire Cox. The unwilling Richardson resigned, and Nixon passed his order on to Deputy Attorney General William Ruckelshaus, who also refused, and resigned.

Nixon then turned to Bork, who carried out his wishes. Still, the firing would turn out only to be a stopgap. The Supreme Court eventually ruled that Nixon had to present the infamous tapes.

That act alone was likely enough of a deal-breaker to scuttle the nomination before it ever making it to the hearing room, but, alas, it did not. The Bork hearings have a full-figured legacy: they certainly set the stage for the ultra-contentious Clarence Thomas hearings, some argue they launched the contemporary conservative movement's obsession with what would later be framed as "judicial activism," and they allowed Justice Anthony Kennedy to bring a far more moderate vision of conservatism to the Court. Plus, of course, the addition of a new verb into the American political lexicon.

For many "originalists," Bork is a martyr, but since his nomination's failure he has demonstrated a nasty habit of behaving in a manner unbecoming of a Supreme Court Justice. Most Justice's, when not writing their memoirs, tend to publish books outlining their judicial philosophy (nearly all of which praise the American judicial and legal system in one way or another). Bork saw fit to repeatedly lambaste American culture, going so far as to argue, in effect, that the only way save it is to censor it. Earlier this year, he sued the Yale Club for damages relating to injuries incurred after falling from a dais during a speech. This despite his long-standing opposition against such law suits and advocacy for tort reform.

It's easy to play the "what if" game with Bork ... Would conservatives have rallied around the "judicial activism" banner if Bork's nomination succeeded? Would organizations like the Federalist Society be as important in conservative circles as they are today without getting the Bork wake-up call? Would George H.W. Bush have chosen a judge as conservative as Thomas with both a Bork and a Scalia already on the bench? If he had, would Bush 41 have fought so hard for Thomas during his controversial hearings without having witnessed what happened to Bork just a few years prior? Frankly, I'm of the opinion that those questions (and countless others) are best left as hypotheticals.