In 1987, when Robert Bork met with Senator Edward Kennedy on the eve of his nomination as a justice of the Supreme Court, it was an awkward visit. Kennedy said his response would not be personal. He said that several times.
Instead he gave a speech that brutally and dishonestly caricatured Bork’s judicial philosophy. It became infamous for capturing the thrust of the Democrat-controlled Senate Judiciary Committee’s treatment of Bork, a practice known to this day as “borking.”
Here’s part of what Kennedy said:
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, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
Bork was denied confirmation, 58-42. And for decades, his treatment stood as the most unfair and hostile thing that could happen to a High Court nominee. It was ideological assassination.
Now there is worse—the character assassination of Brett Kavanaugh. The Democratic members of the Senate Judiciary Committee had 306 opinions by Kavanaugh from his 12 years as a judge on the U.S. Court of Appeals for the District of Columbia from which to consider how he evaluates and rules on cases. Few nominees have ever offered such a sweeping look into their judicial philosophy.
The committee’s 10 Democrats largely ignored this record. For their purpose—blocking Kavanaugh by any means necessary—his judicial opinions were a dry hole. They needed to blacken his reputation, raise doubts about his honor, and challenge his truthfulness. If all that failed, they could try to delay the hearings past the midterm election on November 6, in which Democrats might, if they are lucky, take control of the Senate.
The 11 Republicans were the majority, but Democrats had one big advantage. The media were on their side, ready to help derail Kavanaugh in any way they could.
Here’s what Democrats, the press, and their allies threw at Kavanaugh:
(1) Disruption. Democrats created havoc at the hearing from the moment it started. They demanded so many irrelevant documents that examining them could take months—a fatal delay. When Chairman Chuck Grassley refused, Republicans were accused of hiding information.
(2) Conspiracy. Dianne Feinstein, the ranking Democrat on the committee, sat for six weeks on a secret letter from a woman accusing Kavanaugh of assaulting her when they were both teenagers. Then it leaked. Many Democrats said they believed her. Her story was uncorroborated and was falling apart as the nominee was confirmed.
(3) The “bad temperament” trap. Kavanaugh saved his nomination with an emotional speech defending himself against slanders. He criticized his twin antagonists, Democrats and the media. They retaliated, declaring Kavanaugh lacked the proper temperament to be a Supreme Court justice. They cited his speech as evidence. It wasn’t. An emotional speech in defense of one’s own reputation doesn’t qualify as an example of a bad temperament.
(4) Perjury. In his testimony on the most petty matters—his high school yearbook, his youthful beer drinking—Kavanaugh was sometimes lawyerly. The subject matter was an embarrassment to him and should have been embarrassing to the senators who questioned him. Instead, they accused him of perjury. Kavanaugh testified that he may have had too much to drink but had never blacked out. Several long-ago acquaintances claimed he had. That’s a disagreement, not perjury.
(5) No presumption of innocence. Democrats figured since it wasn’t a court of law, the burden of proving he hadn’t assaulted Christine Ford fell on Kavanaugh. This was Soviet-style logic. But Democrats seemed comfortable with it.
(6) An unexamined accuser. Ford was not investigated, though she had no contemporary witnesses and didn’t speak of the alleged assault until she participated in a therapy session three decades later. Ford and her lawyers refused to release the notes from that session.
All in all it was a disgrace. But Kavanaugh refused to back down, and Republicans stiffened their spines just in time. Maybe they remembered Bob Bork. His mistake was engaging with Democratic senators on judicial philosophy, treating their questions as if they were asked in good faith.
Democrats knew they couldn’t “bork” Kavanaugh, a federal appeals court judge with an impressive record. So they personally brutalized him instead. Bork was banged around unmercifully, and his thinking was savaged by the likes of Ted Kennedy. That was unforgivable, but what was done to Brett Kavanaugh was worse.