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Jewish World Review May 24, 2001 / 2 Sivan, 5761

Jonah Goldberg

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Back To Bork: Liberals revive old tactics for new nominees -- "BORK wasn't borked" reads the headline of a recent op-ed in The Washington Post, in what amounts to one of the most disingenuous bits of journalistic revisionism of the last two decades.

The author, John P. MacKenzie, was the Supreme Court reporter for The Washington Post from 1965 until 1977 when he became an editorial writer for The New York Times until 1997. MacKenzie writes that the 1987 assault on Robert Bork sets a "useful standard" for future confirmation battles. He goes on, "Disagree with Bork's opponents and quarrel with an occasional exaggeration, but recognize acceptable political rhetoric instead of promoting Bork to the head of a victim class."

Mr. MacKenzie insists that the Bork battle set a useful standard because the nominee "was attacked promptly and frontally unlike Ronnie White, the federal judge nominee ambushed by former Sen. John Ashcroft with last-minute libels on his judicial record."

To say that MacKenzie's interpretation of events is tendentious is like saying Bill Clinton's definition of the word "is" was arguable.

For much of American history, the standards used by the Senate and legal profession to confirm Supreme Court justices were competence and judicial temperament.

As Sen. Joseph Biden explained in 1979: "The real issue with a judicial nominee is whether he is capable of objectively reviewing questions of law and fact. To apply any other standard would be to disqualify from the judiciary virtually any public person who has been willing to take positions on judicial issues."


Presumably, Biden had this standard in mind when he told The Philadelphia Inquirer shortly before Bork was nominated: "'Say the administration sends up Bork. I'd have to vote for him, and if the (liberal interest) groups tear me apart, that's the medicine I'll have to take."

But when the Reagan administration actually nominated Bork, Joe Biden caved to the interest groups and vowed to block Bork at all costs.

In his determination to rehabilitate "borking," MacKenzie asserts "contrary to myth no senator called him a racist," implying that Bork was never painted as a bigot. Sure, no senator explicitly said, "Judge Bork, you are a racist," but plenty of them implied it by, among other things, asking the unsubtle question "Are you a racist?" and constantly denouncing Bork's "racial insensitivity."

And, of course, there's Sen. Kennedy's famous broadside:

"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizen's doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of the Government."

As an editorial writer at The New York Times, MacKenzie presumably played a part in crafting the Times' regular tutorials on the use of "code words" by conservatives. If "welfare queens," "quotas," and "merit" are all racist code words - as the Times has often suggested - surely "blacks would sit at lunch counters" fits somewhere in their definition, too?

As Leonard Garment, the former counsel to Richard Nixon and now Washington graybeard, observed in 1987, "It requires blinders to interpret this scurrilous remark as merely a comment on Judge Bork's judicial philosophy."

Moreover, the "borking" of Bork involved more than what senators said in front of the cameras. It involves what they and their staffers said and did behind the scenes. When New York Democratic Sen. Daniel Patrick Moynihan refused to commit to make up his mind before actually reading Bork's record, liberal interest groups threatened to "bork" him, too.

The media and Democratic activists joined together to form a seamless transmission belt for suggestions that Bork was a racist and a totalitarian. The National Women's Law Center asserted that Bork testified in favor of the Human Life Amendment. In actuality, he testified against it.

Planned Parenthood ran a national ad blitz suggesting that Bork favored "forced sterilizations." Gregory Peck hosted a commercial asserting that Bork favored "poll taxes" and "literacy tests" for blacks.

And the media stopped at nothing to find dirt on Bork, including investigating and publishing his home video rentals. Information about his emergency room visits was even leaked from his FBI file.

Yes, there were reasons for liberals to be concerned about Bork. He was, after all, America's preeminent conservative legal scholar (which is why even the ultra-liberal American Bar Association gave him its highest rating).

But the climate his opponents created overflowed with dishonesty and slander, something even the vast majority of Bork's critics have now conceded. The liberal star of The Washington Post op-ed page, E.J. Dionne Jr., recently admitted the tactics against Bork were "nefarious."

So, why would MacKenzie write such a delusional essay, other than to absolve his own role in an unconscionable assault on an honorable man?

My suspicion is that after eight years of Bill Clinton, the country's appetite for political mudslinging, perceived or real, is near zero. But at the same time, liberals are determined to keep Bush from appointing conservative judges, no matter how qualified. The only way to do that is to dust off the tactics and rationales they used to bork Bork.

In other words, we're back to square one.

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