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‘Borking’ Nominees Continues to Haunt Freedom

November 3, 2020

By Hiram Sasser, Executive General Counsel

October 23 will mark 33 years since the U.S. Senate—led, in part, by then-Senator Joe Biden—defeated the nomination of Robert Bork to the Supreme Court of the United States. That same day in 2020, the U.S. Senate will likely have before it the Supreme Court nomination of Judge Amy Coney Barrett.

While Bork himself is almost ancient history, his defeat (and the verb that now bears his name) continues to haunt conservative judicial nominees since—just ask Brett Kavanaugh. The effect has been to either produce less conservative nominees or to blunt their boldness.

Bork was certainly qualified for the bench, having served on the U.S. Court of Appeals for the D.C. Circuit, as solicitor general of the United States and other key legal roles that propelled President Ronald Reagan to nominate him to the high court. Luminaries like President Gerald Ford and Senators Bob Dole and John Danforth introduced Bork to the Senate Judiciary Committee.

Still, it was Biden who warned Reagan, “If you nominate [Bork], you’ll have trouble on your hands.” Perhaps he knew that Senator Ted Kennedy would launch into a tirade against Bork just 40 minutes after Bork’s nomination—a screed now simply known as, “Robert Bork’s America.”

Perhaps Bork was too smart. Maybe he was too comely. Perhaps he was, as Nina Totenberg observed in 2012, “a charming and witty man in private, [but] dour and humorless in public.” In the minds of some, he was the personification of Kennedy’s caricature.

Whatever the reason, after 12 days of hearings, including five days of testimony by Bork himself, and another month of debate with the nomination pending on the floor of the Senate, Bork became only the fourth nominee rejected by the Senate in the 20th century. The man once destined to become a justice became a verb instead.

Today, the nation nervously awaits Amy Coney Barrett’s fate. In a 2012 obituary of Bork published in The Atlantic, Andrew Cohen observed that the confirmation hearings for all judicial nominees changed in 1987. Worse, that change encouraged “earnest nominees to say to the Senate Judiciary Committee nothing at all candid, specific or profound about their judicial philosophies or views of the law.”

Ironically, that may be the loudest complaint from Senate Democrats during last week’s confirmation hearing. Barrett invoked “the Ginsburg Rule” and referenced Kagan’s infamous “no previews” adage so often that senators gaveled out last week feeling stymied. Not only had they not landed a blow, with not a few political protestations, but they also claimed to have learned very little about this nominee.

That is likely to build as a talking point this week, solidifying for them into a reason to vote against an otherwise-qualified nominee. What it reveals should trouble every American.

It is not that Barrett is incapable of answering their questions; she proved her ability repeatedly and deftly. It is that, in 1987, Senate liberals changed confirmation hearings for the worse. Left with the threat of being “borked,” every nominee—every potential nominee—is now reticent, recalcitrant and reserved.

Borking demonstrates a voracious appetite for power over the judiciary that weakens the spine of Americans who would otherwise want to serve the republic.

Somewhere, a young woman of faith who has excelled in law school, an aspiring Supreme Court justice, is questioning whether she should join a church because of how the Left has so maligned the religion of Judge Barrett and others. The law student will avoid exercising her free speech, free exercise or freedom of association because it might be used as grounds for disqualifying her as a judicial nominee someday.

Another young lawyer who prizes the freedoms of the First Amendment, and wants to defend them, now checks herself because of the Left’s 33-year history of borking conservative judicial nominees who dare hint that they agree with an originalist interpretation of the Constitution. Can she defend an evangelical Christian baker who morally objects to baking the cake, and yet have any hope to be the next ACB or RGB? This means someone else is left without an attorney to defend her civil rights, because any attorney who might ably defend her religious exercise could be disqualified from future nominations because the dogma lives too loudly within her.

If Amy Coney Barrett’s confirmation does nothing else, let it serve to let the ghost of Robert Bork rest in peace. Let the Left forever bury its quest for power at the cost of chilling the exercise of freedom by young lawyers and citizens such as these. If the Left does not, and Bork’s ghoulish specter haunts us once more, the Constitution’s promise that we can both believe and succeed will become mere folklore.

For all our sakes—and those of our future leaders—confirm the eminently qualified Judge Amy Coney Barrett without further discord or delay.

Note: This article was first published on Newsweek and is re-published here with permission. The article presents the main points of an op-ed published in Newsweek. This work was authored by Hiram Sasser. The full article can be found on the Newsweek website, here.

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