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How We Got Borking

This morning, Judge Bork went to a better place than this one. RIP.

UPDATE: Andrew Cohen, writing in The Atlantic:

Reasonable minds may argue over how different American law would be today if the Senate had confirmed Bork. The position ultimately was filled by Anthony Kennedy, who has been a diehard conservative in some areas (like economic policy and the First Amendment) and an unabashed liberal in others (like gay rights and restrictions on capital punishment). My best guess is that Bork would have been a conservative activist very much in the manner of Justice Antonin Scalia, a loud and consistent vote to roll back precedent not just to pre-Warren Court positions but to the Lochner-era sensibilities of a century ago.

But no reasonable person today can contend that judicial nomination proceedings are more insightful and productive in the wake of the Bork hearing. Throughout the long history of court appointments, confirmations had rarely been detailed affairs. In 1962, for example, John F. Kennedy appointee Byron White was questioned by the Senate Judiciary Committee for all of 11 minutes. In fact, it wasn’t until 1925 that a Supreme Court nominee (Harlan Fiske Stone) even appeared before the committee and it was another 14 years before a second (Felix Frankfurter) did so.

So the Bork hearing didn’t reverse a century of transparency in the process. But it certainly assured that no such transparency and candor would ever come again.

about the author

Rod Dreher is a senior editor at The American Conservative. He has written and edited for the New York Post, The Dallas Morning News, National Review, the South Florida Sun-Sentinel, the Washington Times, and the Baton Rouge Advocate. Rod’s commentary has been published in The Wall Street Journal, Commentary, the Weekly Standard, Beliefnet, and Real Simple, among other publications, and he has appeared on NPR, ABC News, CNN, Fox News, MSNBC, and the BBC. He lives in Baton Rouge, Louisiana, with his wife Julie and their three children. He has also written four books, The Little Way of Ruthie Leming, Crunchy Cons, How Dante Can Save Your Life, and The Benedict Option.

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