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Ninth Justice: The Fight for Bork.

Ninth Justice: The Fight for Bork.

Patrick B. McGuigan, Dawn M. Weyrich. University Press of America, $21.95. More than two years after Robert Bork's nomination to the Supreme Court generated a war of position papers and press releases between liberals and conservatives, these groups are battling each other in books over the meaning of Bork's failed confirmation. McGuigan and Weyrich tell the story from the perspective of an "outside," far-right, special-interest group, the Free Congress Foundation.

The purpose of the book, according to McGuigan, is threefold: to provide a chronological narrative of the confirmation battle; to provide a glimpse of McGuigan's personal recollections from the hectic four-month period surrounding the nomination; and to instruct fellow conservatives on how to confirm future nominees.

The authors keep their promises, but deliver a narrative that ranges from uninspiring (the chronology) to cliched (McGuigan's personal anecdotes) to hysterical and vengeful (the guidelines on future nominees).

In order to assemble the Bork nomination chronology, which starts in late June 1987 with the retirement of Justice Lewis Powell and concludes in late October with the Senate's 58-42 vote rejecting Bork, it appears that the authors simply summarized articles appearing in various newspapers and magazines. Although this approach allows the reader to track developments during the confirmation struggle - which is helpful in certain areas, such as Senator Joseph Biden's retreat from pro-Bork statements - it also results in a rather flat narrative.

Perhaps revealing McGuigan's personal experiences and emotions during this period is supposed to spice things up. McGuigan argues that a slick leftist smear campaign and the Reagan administration's anemic defense of Bork together doomed the nominee. Indeed, McGuigan concludes that administration officials avoided fighting for Bork until it was too late. He castigates Howard Baker, the White House chief of staff, and administration lobbyist William Ball.

At other points in his account McGuigan offers anecdotes designed to demonstrate his intense personal commitment to the nominee and to traditional conservative values. Consider McGuigan's conversation with Paul Weyrich, father of co-author Weyrich, president of the Free Congress Education and Research Foundation, and Christian conservative activist:

"When he came to my office around that same time, Paul expressed concern for my well-being. Rather than the stern look that conveys urgency or intensity, I saw in his eyes the concern that occasionally moves him to slow his amazingly frenetic pace, to offer counsel to a friend.

"He got right to the point.

"Pat, you are as uptight now, only a couple of weeks after this started, as you were at the end of the Manion fight [Daniel Manion, a conservative law professor whose nomination to the federal bench was vigorously contested]. You've got to step back, ease up, keep things in perspective.'

"You're probably right. It's just this simple: They [the liberal opponents of Bork] are doing so much, so fast, so thoroughly, and so effectively. Do you think we can win?' I asked.

"We have a chance because it's Bork. But the other side has the Senate, and some of our normal champions aren't exactly pulling out all the stops for this guy. We can win, but we might lose.' he answered."

Rarely do McGuigan's stories or analyses demonstrate more depth than this. As for confirming nominees in the future, McGuigan believes conservatives should prepare to overwhelm liberals with the same deplorable tactics the liberals used to scuttle Bork. This strategy includes amassing war chests, conducting intricate media campaigns, and threatening congressmen. It also includes prayer: "Those committed to the rule of law in our beloved land - and who also believe God is in control - need to remember the spiritual and personal dimensions of such battles on this earth."

Despite the urgency that accompanies the conversations throughout Ninth Justice, the authors never explain why we should care as much as they do about the Bork nomination. We are aware of his impressive resume - Nixon's infamous solicitor general, Yale Law School professor, and federal appellate court judge - and are told that he advocates judicial restraint. Yet the authors never explain why getting Bork confirmed was particularly essential. Given the conservative voting record of Justice Anthony Kennedy, the judge who eventually replaced Justice Powell, it is unclear why the Bork debacle is significant to conservatives as anything other than a transient political defeat.

The most insightful part of the book is the media essay by Bork's son, R.H. Bork Jr., a former writer for Forbes and U.S. News & World Report. Bork details how many Washington reporters oriented their coverage around who was criticizing Bork rather than assessing the validity of those criticisms. Bork fils attributes this negative coverage to a spreading hostile environment created by liberal interest groups opposed to Bork's nomination, which meant that the sources quoted in many stories - not just the special-interest groups but also the congressional officials whom they advised - attacked the nominee.

Judge Bork was not merely the victim of superior political organizing by liberal groups, but also of the media's relative ignorance of the law. Journalists who reported wild charges against Bork often didn't understand the legal context in which the claims were made, or justified reporting them on the basis of "objectivity" - that is, the substance of the remarks was secondary to who made them. Bork Jr.'s most telling example is an extended exchange between Senator Ted Kennedy and Judge Bork during the confirmation. Kennedy leveled accusations without responding to Bork's replies, then concluded his "questioning" with a devastating sound bite that was featured prominently on the television news. Charlie Peters believes that a year of law school would benefit most journalists; the Bork affair shows this goes double for those covering confirmation fights.
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Author:Citron, Rodger
Publication:Washington Monthly
Article Type:Book Review
Date:May 1, 1990
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