FedSoc Blog

Is “Borking” Still Possible Today?

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by Publius
Posted December 26, 2012, 1:36 PM

Gordon Crovitz writes in a Wall Street Journal op-ed:

Within 45 minutes of the announcement of Bork's nomination, Ted Kennedy went to the Senate floor to make a speech that became so infamous it would feature in many of his own obituaries:

"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 citizens' doors in midnight raids, schoolchildren could not be taught about evolution and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens."

Judge Bork was right when he said, "There was not a line in that speech that was accurate." But a cabal of 40 liberal lobbying groups led by Ralph Neas (now a top pharmaceutical lobbyist in Washington) used then-existing media brilliantly to caricature the nominee. Actor Gregory Peck narrated a television ad that aired in 22 states, in an era when TV dominated mass communications. In somber tones, the "To Kill a Mockingbird" actor warned that Bork had "defended poll taxes and literacy tests which kept many Americans from voting." This was also a complete fabrication.

But there was no Internet to correct the record—no legal blogs such as today's SCOTUSblog, AbovetheLaw, Volokh Conspiracy and Overlawyered. There was no Twitter topic on, say, #therealjudgebork. A digital counterweight could at least have slowed down Bork's defamers.

It is unlikely that a Ted Kennedy would dare give such an outrageous speech in the first place today. Politicians must now expect that online outlets will instantly correct misstatements and intentional distortions with web links and other disclosures of the facts.

Back in the 1980s, only analog-era tools could set the record straight, mostly by citing the details of what Bork actually wrote in articles and court decisions. During the confirmation process I wrote an article in these pages focused just on Bork's rulings in civil-rights cases, concluding that the distortions of his record were "nothing more—or less—than a grotesque lie." But the judge's actual record was swamped by television ads and lobbyists' direct-marketing hyperbole.

By now, almost everyone admits the outrage of the borking. Ethan Bronner, who covered the hearings for the Boston Globe, later wrote in a book that "Kennedy's was an altogether startling statement. He had shamelessly twisted Bork's world view." Jeffrey Rosen, an aide to then-Sen. Joe Biden when he headed the Judiciary Committee that trashed Bork, wrote in the liberal New Republic last week: "Bork's record was distorted beyond recognition. . . . The borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones."

Perpetrators of the borking will have to answer to their own consciences. The rest of us can take some comfort in knowing that thanks to the Internet, it is less likely anyone will have to endure the outrages that vilified Robert Bork.

 

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