Battle for Justice: How the Bork Nomination Shook America.

Battle for Justice: How the Bork Nomination Shook America

CONSERVATIVES are often called paranoid, but none in 1987 was paranoid enough to suspect what Robert Bork's enemies had in store for him. Fromt he day of his nomination to the Supreme Court, he was the target of a campaign of hate and fear, led by the nation's leading liberals and conducted with state-of-the-art propaganda techniques, that moved even the anti-Bork Washington Post to speak of his "lynching" by "intellectual vulgarity and personal savagery."

Ethan Bronner of the Boston Globe vividly reconstructs the story in Battle for Justice: How the Bork Nomination Shook America. Bronner too is an anti-Bork liberal, but he bends over backward to be fair. His own narrative gives ample ground for rejecting the judgment he finally renders that Bork's defeat was warranted.

It's a perverse marvel to hear liberals who ritually denounce "McCarthyism" defend, excuse, or dismiss as irrelevant the tactics used against Bork. Ted Kennedy set the tone by limning "Robert Bork's America" as a fascist nightmare of back-alley abortions, segregation, censorship, midnight police raids, and general obscurantism. Subsequent accusations included racism, sexism, general "insensitivity," indifference to privacy, contempt for the Bill of Rights, willingness to see poor women sterilized, and just being "out of the mainstream." Senator Howell Heflin raised questions about Bork's beard and "strange lifestyle." A pro-abortion group ran ads saying Bork's confirmation would "wipe out every advance women have made in the twentieth century."

Worse, these shrieks weren't impulsive: they were calculated, orchestrated. People for the American Way, which in 1980 had warned darkly that the Religious Right's involvement in politics threatened the separation of church and state, used the network of black churches in the South to spread hysteria about Bork, while rumors of his "agnosticism" were being promulgated through white Baptist churches. PAW also produced a scurrilous ad, gravely intoned by Gregory Peck, calling Bork an enemy of civil rights, privacy, and free speech. The Roper and Harris polls nudged public opinion along with loaded questions framed to excite the worst suspicions about the nominee. But the smears were only part of the story. Bork's detractors, not all of them foul, also used highly sophisticated methods of spreading their message. They provided small local radio and TV stations with clips--known in the trade as "actualities" and "video news releases"--that could be used as "news," though slanted against Bork, and many stations played them without acknowledging that their source was the anti-Bork coalition. It raises, as they say, troubling questions of journalistic ethics, but it worked. Truth catches up with such practices only in Bronner's pages.

The White House, expecting a man of Bork's distinction to be confirmed easily, was caught flat-footed by the organizaed onslaught and never recovered. Bork himself couldn't bear to indulge in the kind of I-do-too-love-women-and-minorities posturing that some urged on him. But however weak the defense was, there is no excuse at all for the attachers.

Bronner argues lamely that the controversy was at bottom a contest of rival visions of America, and that the pro-Bork side failed to make its case: "Wittingly or not, the Administration denied minorities the ineffable: a sense that government cared." Most Americans, he says, disagreed with Bork's view that the judiciary had been overstepping its proper bounds, a judgment Bronner justifies only with the results of the nomination battle itself.

All those results proved was that the smears succeeded. By every indication, Bork would have won in a fair fight. that he was ill-prepared for the fight he got is too bad; a man more ingratiating might have overcome what he had to face. But he should never have had to face it. The whole affair was one of the dirtiest spectacles in American political history. Ted Kennedy sank even in the esteem of people who already regarded him with profound contempt. Yet Bronner writes blandly: "Kennedy did distort Bork's record, but his statement was not the act of a desperate man. This was a confident and seasoned politician, one who knew how to combine passion and pragmatism in the Senate."

A year after Bork had been drenched in this flood of sanctimony and slander, liberal opinion was decrying references to Willie Horton--all of them, as far as I know, perfectly factual--in the 1988 presidential race. One's sense of the limits of human effrontery had to be extended.

Against the advice of some of his discouraged backers, Bork chose to hang in to the end, even when it had become plain that the Senate would reject him. He said that to withdraw would have been to concede victory to the smear campaign. It was an honorable stand, and at that point he may have been right. But it's arguable that he should have withdrawn earlier, when the outcome was still uncertain, as a way of refusing to be judged under such prejudicial conditions. A fair vote had become impossible, thanks in large part to the men--Kennedy and Joseph Biden--who bore responsibility for guaranteeing an atmosphere appropriate to the solemn business of evaluating a candidate for the Supreme Court. Such a gesture might have reaffirmed the dignity of the Court and delivered a stunning rebuke to the demagogues who'd reduced the nomination process to the level of bearbaiting.

It's now easier to see the contours of the affair. As long as the Court was their reliable ally, liberals protectively insulated it from the pressures of politics and publicity. Now that its membership is predominantly conservative, the rules have changed, and liberals--especially the mass media organs--sanction mass demonstrations and other extraneous methods of influencing the Court's deliberations. The fight over Bork was only the beginning. We're now living in Ted Kennedy's America.