Monday, March 28, 2022

The Actual Bork Lesson

The Republican Party (Lindsey Graham in particular) would like you to believe that the Democratic Party is responsible for the attacks upon Ketanji Brown Jackson in the Senate Judiciary Committee because of how Democrats treated poor ol' Robert Bork in the 1980s. Predictably, mainstream media- even supposedly liberal CNN and MSNBC- have done little to push back on this myth. Fortunately, we now have John Heilemann imposing reality (at 24:41 of the video below) when on Friday evening's Real Time with Bill Maher he explained

This is the thing. This is the thing about the lessons of the Bork experience, Like, if you go back and watch the Bork hearing, you'll find it was like a constitutional law seminar. I mean, you had Larry Tribe down from Harvard and you had Ted Kennedy and you had at that time Joe Biden, who was leading that charge. they were dissecting Robert Bork's constitutional views and trying to say if this became a prevailing view of the Constitution, America would go backwards.

It was substantive. It definitely had an ideological edge. But it was substantive- not what we see now. And I think you have people who say, well, it's become a partisan circus because of Bork. That's not what happened because of Bork.

What happened because of Bork was people decided they couldn't ever- justices*- one good thing about Bork was that he always said what he was for and what he was against and that's why he lost- because he told the truth, that he was retrograde, he did want to take America back in time,

Now you have justices who are coached, do not say anything. And so in a constant- where justice is like if I speak my mind I could get voted down, they- alright, it's all performance for them. It becomes Kabuki.

That's the unfortunate legacy of Bork is that we now have substance-less hearings in a time when a televised hearing could be a great lesson.

Heilemann then started talking about Merrick Garland, but you get the point. There was never any interest on either side in anything substantive. Democratic senators and Mrs. Jackson were confident that without any flubs or gaffes, the Judge would end up being approved in the Senate, with or without a tie-breaking vote from the Vice President.

Republicans also understood approval was virtually assured unless they could get a juicy soundbite from Jackson. They knew they could not get that by boring down on issues with the relentless questioning, which a witness on the jury stand might face.

At 6:53 of the video below, Republican senator Marsha Blackburn of Tennessee can be seen asking the nominee 'can you provide a definition for the word 'woman'"? Jackson replied "I can't" and when asked again stated "not in this context. I'm not a biologist."

That should bring to mind the stock answer given by Republicans when a few years ago they were asked whether climate change is real. "I'm not a scientist" they would often respond, to the justified derision of everyone unafraid to acknowledge the obvious.

Thomas' refusal to get nailed down as to whether there is a difference between men and women is analogous to the refusal of another post-Bork Supreme Court nominee to answer another simple question.   As reported at the time of his Judiciary Committee hearing, Clarence Thomas "told Mr. Leahy that he had never debated the Roe decision with any acquaintance, did not remember discussing it as a law student and had no present position at all on it."

The controversial C.T. was clearly lying (by a long shot, not his most famous lie) and because of- not despite- his deception, he was confirmed.

That less is lost on no one, as Heilemann was saying. Nonetheless, Judge Jackson inadvertently offered  to Senator Blackburn an opening upon stating "I am not a biologist." Were Blackburn intent on exposing a nominee she already had made up her mind to vote against, she would have noted that physical scientists (i.e., biologists)  generally agree with Blackburn's view of a biological distinction. It is social scientists, dreaded by many conservatives such as Blackburn, who question the traditional, dichotomous view of men and women.

But the Tennessean didn't go there, instead remarking

The fact that you can't give me a straight answer about something as fundamental as what a woman is  underscores the dangers of the kind of progressive education that we are hearing about. Just last week an entire generation of young girls watched as our taxpayer-funded institutions permitted a biological male to compete and beat a biological woman in the NCAA's swimming championships. What message do you think this sends to girls who aspire to compete and win in sports at the highest levels?

But Jackson had given "a straight answer" (or a gay one, whatever) and a potentially revealing one by throwing the question back to biologists, which gave Blackburn a chance to nail her down. However, making a point about gender in sports and berating the public school systems "("taxpayer-funded institutions") was a higher priority.

Dissecting Ketanji Brown Jackson's constitutional views was of little interest to Blackburn or any of her colleagues, even to Ted Cruz, who has argued in front of the US Supreme Court. Since Bork, every nominee is coached to avoid answering questions and in this case, the opposition changes the subject even when the nominee slips up and says something interesting.


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