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Friday, July 08, 2005

Defending Judge Bork

OK, that's probably the last time that phrase will appear on this blog.  Nevertheless...

Jonathan Chait has this op-ed in the LA Times today suggesting that history has vindicated those who "Borked" Judge Bork, what with him being a "nut" and all.  Now, I'm no great fan of Judge Bork's post-nomination work, as this review makes clear.  I don't think he weathered his experience well (not that one could blame him), and the bitterness shows in his later writing.  Actually, I think he is worse off both because of his encounter with his adversaries and because of his friends; much of his post-nomination, AEI-centered writings are relatively lazy treatments intended for general audiences of admirers.  His later work suggests to me that one's thinking can be altered for the worse by the presence of too many foes or too many fans.  But does any of this mean we can reliably say Bork would have been a nut on the Court?

I think not.  As poor as I think Bork's post-nomination ideas are, as a private citizen he is free to have them, and to explore them in as much depth, and to whatever depths of silliness, he wishes.  As a judge, on the other hand, he would have been constrained in countless different ways: by stare decisis (and I don't believe he was a Thomist on this issue, at least at the time); by the weight of making a decision with real-world effects, as opposed to lecturing about it at the AEI; by his colleagues; by his clerks; by his reputation; by his oath; and by very real craft constraints.  (In the same vein, not every personally liberal lawyer would see the bench as a playground for the vindication of his or her political views.)  In short, I don't think Chait is necessarily right to say we can see what Justice Bork would have been like by looking to Citizen Bork. 

Not that people ought not scrutinize a nominee's record, or be concerned about a judge having been too left/right or not left/right enough.  But, as I wrote yesterday, it is worth remembering that a judge's role is different from a lawyer or writer's role, and not every Kennedyesque worst-case depiction of a judge's philosophy is likely to materialize in practice.

Posted by Paul Horwitz on July 8, 2005 at 04:23 PM in Law and Politics | Permalink


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» Blog Round-up - Sunday, July 10th from SCOTUSblog
Here is Prawfsblawg defending Judge Bork. Here is Linda Greenhouse on the legacy of the Rehnquist Court. Here is Eugene Volokh on when the Justices have changed their mind on big issues. C-SPAN recently launched this special website on the... [Read More]

Tracked on Jul 10, 2005 9:36:01 PM

» Blog Round-up - Sunday, July 10th from SCOTUSblog
Here is Prawfsblawg defending Judge Bork. Here is Linda Greenhouse on the legacy of the Rehnquist Court. Here is Eugene Volokh on when the Justices have changed their mind on big issues. C-SPAN recently launched this special website on the... [Read More]

Tracked on Jul 11, 2005 2:35:29 AM


As a matter of fact, there probably is evidence substantiating Hill's claims. I don't happen to have it on me, but in exchange for that admission I'd like to see whether or not there is evidence substantiating the various defense accusations and counterattacks, by Thomas and his defenders.

Can Thomas prove he never made the comment about Long Dong Silver, or that he did not make obscene and inappropriate comments in private about his endowment or about pubic hair? Of course he can't. He could, by disclosing far more private information than most people ever care to, refute certain likely forms of evidence, as by proving he never used a credit card under his own name to buy or rent pornography - but that doesn't prove much, and as I say it's incredibly intrusive.

The strongest evidence I have at this point is an absence of evidence. Thomas said "No I didn't," and then it became a he-said-she-said battle of credibility, which Thomas evidently won. Won unfairly, although not by his own doing. Read the appalling apologia by the entirely untrustworthy operative who took the lead in smearing Hill's good name, by making up and spreading lies about her during the confirmation process. I don't know if his recanting is itself political and selfish and immoral and a lie, but I know this: most of what Everyone Knows, is Often Wrong. Not the obvious truths ("the sky's blue") but the unobvious truths ("the Earth is not flat, despite its local appearance"; "the Sun does not rise and set, despite appearances"; "racially discriminatory actions intended to deprive the vote of minorities - that is, flagrant violations of the 13th, 14th, and 15th amendments - occurred in Florida in the Bush-Gore election"; "Santorum may never have said 'man on dog'" etc.). People are always misinformed, until the historians are done kicking it around.

And then we have the revisitionists come along afterwards, re-interpreting haystacks to their heart's content based on a straw's worth of evidence.

Why not believe a word of Hill's reputation? Did she seem an obvious liar (aside from being a liberal, I mean)? Did she stand to gain a lot from being associated with vile, disgusting sexual innuendo? Did she stand a chance of bringing a sexual-harassment type claim against a prominent and respected black male jurist? Who stood to benefit? Not her, only those who brought her forward. Anita Hill _lost_ the confirmation battle, into which she had been inserted (possibly with her consent), at the cost of her privacy and dignity.

I never believed a word of Thomas' denial, but that was far more from politics than from personal familiarity. Many feminists went the same path; believe the woman, doubt the man, let the court sort it out. Maybe the "court" got it wrong this time, as it often does.

Posted by: Eh Nonymous | Aug 16, 2005 12:33:12 PM

Ted -
I apologize; I evidently somehow misread "Given the offensive and unreasonable garbage Thomas is put through when he accepts general audience invitations" as "Given the offensive and unreasonable garbage Thomas says when he accepts general audience invitations".

Posted by: Simon | Jul 17, 2005 10:40:08 PM

Simon: Please work on your reading comprehension. I have no idea where you get the idea that I endorsed (much less wrote) the letter I linked to, given that I called it "unreasonable and offensive garbage" and that it's signed by someone else.

There is no official AEI position on Justice Thomas; you quoted an op-ed by one of his clerks, John Yoo. And not only that, the op-ed suggests that Thomas shouldn't be chief justice, because it would restrict his ability to be a lone dissenter. Have some humility, or at least take more care before throwing bombs.

Posted by: Ted | Jul 17, 2005 8:38:04 AM

I wasn't aware that anyone actually believed a word of Hill's allegations at the time, let alone now! Is there actually any evidence substantiating her claims?

Posted by: Simon | Jul 10, 2005 9:10:15 PM

Heh. Fun series of comments. I take a few potshots at Bork in my blawg, too, because he's a nutcase who should never have been nominated. Based mostly on his jurisprudence as it existed both before and after his unsuccessful attempt to win confirmation.

Re. Thomas: He went through a rough confirmation, no question, probably the worst one experienced by a candidate for Associate Justice who was still confirmed.

Re. the abuse he takes being unreasonable: well, he isn't pro-slavery, or anti-gay, or racist (unless you define his views to be per se racism, which is itself a racist and unwarranted position). The abuse he deserves for having harassed Anita Hill isn't nearly enough to make up for that woman's humiliation before that vicious lynch-mob that was an all-male Senate, given the evident truthfulness of every one of her allegations. For all that dirty laundry to come out, and for his reputation to remain _unsullied_ to much of America, is a travesty. The man rented porno videos; fine. I'm in favor of the First Amendment. He had a lewd sense of humor, despite protestations to the contrary by people who had not heard him employ it; an unbelievable claim? And he repeatedly and inappropriately made comments that aren't really acceptable when directed at a subordinate, no matter what the genders or marital statuses. See also Bill O'Reilly.

Men get away with a lot. Anita Hill was victimized, once privately and then again when she came forward. For painting her as a liar, and possibly perjuring himself (do nominees always defend themselves under oath? Should they be forced to?) Thomas deserves unending, incomprehensible amounts of social abuse. But much respect for his admitted legal reasoning, I'm sure. Not that this justifies him.

Posted by: Eh Nonymous | Jul 10, 2005 6:25:10 PM

I was under the impression that AEI was fairly keen on the sort of jurisprudence exemplified by Justice Thomas?

Your wrote above:
Given the offensive and unreasonable garbage Thomas is put through when he accepts general audience invitations, it's little surprise that he tends to speak to friendly audiences.But your name links to your blog, which has this to say in your bio:


"I'm Ted Frank. Since July 1, 2005, I have been at the American Enterprise Institute for Public Policy Research as a resident fellow"(From your blog bio).



Justice Thomas’s nine terms on the Supreme Court have been marked by a clear, consistent, and courageous jurisprudence that has attracted increasing attention and admiration from legal scholars, journalists, and other students of the Court. His contributions have been particularly noteworthy in the areas of federalism, civil rights, criminal justice, and business regulation(From your employers).

See also:
(AEI endorsing Thomas for CJ) et al.

Did you write the incredibly silly letter you linked to (or indeed, your evident distaste for Justice Thomas), and does AEI know about this? ;)

Posted by: Simon | Jul 10, 2005 4:30:51 PM

Given the offensive and unreasonable garbage Thomas is put through when he accepts general audience invitations, it's little surprise that he tends to speak to friendly audiences.

Posted by: Ted | Jul 10, 2005 10:09:12 AM

My pleasure. Until next time, this has been "Tales From the Unitary Executive!"

Posted by: Paul Horwitz | Jul 9, 2005 5:07:01 PM

Very interesting thanks. Its rare that my impressions of a situation and personality are changed, but this has changed my impressions of Bork. I wonder if we are responsible for the symbolism that we acquire in the culture, or put another away, should the public perception be modified by facts from behind the scenes? In a world of spin, I'm generally skeptical of after the fact rationalizations and backshadings to stories, but in this case there does seem to be a real substantive component to the backstory.

Of course, that doesn't change the fact that Bork could have been a hero to the nation by refusing to fire Cox. It's a harder call, that's for sure.

Anyway, thank you for the insight.

Posted by: Bart Motes | Jul 9, 2005 4:57:28 PM

In fairness, although Bork did indeed comply with the President's directive, he did so with the knowledge and at the urging of his predecessors, Richardson and Ruckelshaus, each of whom considered themselves differently situated because they had specifically promised the Senate Judiciary Committee not to fire Cox, while Bork had not. Here's a snippet from a review of Ken Gormley's biography of Cox:

"Ironically, while Bork has been pained with a black hat as a result of his action, Richardson and Ruckelshaus agree that Bork had originally intended to resign after firing Cox but that the two men had urged him to fire Cox but talked him out of resigning, feeling the country needed to stop the bleeding." Stephen B. Goddard, Book Review, 72 Conn. B.J. 238, 242 (1998) (reviewing Ken Gormley, Archibald Cox: Conscience of a Nation (1997)).

Posted by: Paul Horwitz | Jul 9, 2005 4:45:15 PM

The endless debate over Bork seems to always elide the most important moment of his career: when, as Solicitor General and suddenly acting Attorney General, he declined to follow the lead of his superiors (who nobly resigned) and instead followed Nixon's self-serving order to fire Archibald Cox, the special prosecutor in the Watergate inquiry. In the moment of firing Cox, he mapped the limits of his career. He may have had the talent to sit on the court, but he did not deserve to. No injustice was done to Bork.

Posted by: Bart Motes | Jul 9, 2005 4:19:44 PM

Sorry: I meant to say "Hillel" when I said "Ethan." I think in the interests of time, which I could be spending tracking retirement rumors, I'll let my "[n]ot that this is so extraordinary...but..." do the work on your question, as this is the sort of thing I had in mind with my caveat.

Posted by: Paul Horwitz | Jul 8, 2005 6:01:22 PM

My point in bringing up the claim that Thomas was embittered was not to stake a position on it; but merely to state that being narrowly confirmed is no guarantee that Bork would have been seen as free from embitterment--just look at what they say about Thomas.

Paul: As for Thomas's unwillingness to speak to general audiences or give interviews, isn't Souter also notoriously private? And no one suggests that Souter is embittered.

Posted by: Hillel Levin | Jul 8, 2005 5:55:35 PM

Will's point is worth responding to because I don't mean to suggest Thomas was embittered in every way (actually, I didn't suggest he was embittered at all, but I think my response to Ethan's post at least implicitly assumed the premise). I've read similar accounts, at least, and heard of similarly friendly encounters; and the recent Judging Thomas biography is also worth reading because it spells out his quiet decency in many ways. He is no telescopic philanthropist, but a very decent and generous man in his private dealings. But he has, I think, spoken bitterly about the confirmation, the process generally, and much of the media. And he has, I think, very deliberately avoided a number of interviews and public appearances that other Justices might have undertaken, and been more willing to speak to likeminded audiences than general ones. Not that this is so extraordinary; certainly it's not high evidence of lingering bitterness. But it appears to have been fueled not simply by a preexisting sense of privacy, but also in response to his experience.

Posted by: Paul Horwitz | Jul 8, 2005 5:41:33 PM

For what it is worth, Thomas clerks and others who know him all seem to uniformly report him as one of the most gregarious people on the court. I'm not sure where the account of him as "embittered" comes from.

Posted by: Will Baude | Jul 8, 2005 5:29:47 PM

R.e. Justice Thomas, I think that the disgraceful way he was treated at the nomination hearings certainly "damaged" him to a certain extent; I don't think it materially affects his views or his writing on the Court, but I do believe that the result of that fight is that there will not be a Chief Justice Thomas. As much as I'd personally love such an outcome - and I think many on my side of the aisle agree with that - I just don't think he'd be willing to get put through another confirmation battle.

Of course, personally, I think that Bush should use his recess appointment power to create Justice Bork right here and now. Even if he's only on the Court for a couple of months before the appointment expires, I think that would be hugely symbolic, and would vindicate the treatment he received.

Posted by: Simon | Jul 8, 2005 5:24:27 PM

I agree with your points.

This is a way in which judges are very different from politicians. Politicians have to be able to stand constant criticism without showing outright resentment. Clinton and GWB have both proven to be excellent at navigating these muddy waters. Part of it, I think, is their "just folks" charm--something Americans apparently appreciate in their politicians, but couldn't care less about in their judges (and rightly so).

Posted by: Hillel Levin | Jul 8, 2005 5:00:05 PM

I agree, Paul. I think there is a noticeable difference between Bork's pre- and post- writings. Whether or not you agree with it's conclusions, The Antitrust Paradox is a generally well-written and intelligent book. Much of Bork's recent writing is neither.

I suspect that a Justice Bork would have ended up a lot like Scalia -- reliably conservative, often maddening to liberals, but not noticeably nutty.

Of course, there's really no way of knowing. But much of the whole Bork incident has always saddened me -- I think that critics went over the edge into character assassination in many instances.

Alas, that tactic seems to be par for the course now, for both political parties.

Posted by: Kaimi | Jul 8, 2005 4:57:53 PM

A fair point -- although it's not clear to me whether Thomas was embittered as a result of the process as a whole, or the post-Anita Hill part of the process. Bork faced the first kind of hearing, not the second. I do think the Thomas nomination is another interesting example of some of what I adverted to in my post: that a person in this situation, faced with substantial public criticism and public defense (and who may not hear from or pay as much attention to folks with more moderate views, let alone the millions of indifferent parties) may be polarized by both phenomena -- by the feeling that he has countless vicious enemies, and by the feeling that the upwelling of support demonstrates he has been utterly vindicated.

Even if Bork had been embittered, though, he would still have been subject to numerous countervailing constraints even if he were inclined to throw caution to the winds.

Posted by: Paul Horwitz | Jul 8, 2005 4:51:11 PM

We, of course, have no way of knowing how Bork would have acted if he had been confirmed. But a narrow confirmation might have embittered him as much as his defeat apparently did. After all, it has been argued with some force that Justice Thomas became radicalized and embittered as a result of the process that led to his nomination.

Posted by: Hillel Levin | Jul 8, 2005 4:42:30 PM

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