Shortcut by John Pollack

Author:John Pollack
Language: eng
Format: epub
Publisher: Penguin Group US
Published: 2014-08-28T16:00:00+00:00

DON’T CHOKE ON YOUR OWN WORDS

In 1987, President Ronald Reagan nominated appeals court judge Robert Bork to the Supreme Court. By any measure, Bork was an experienced jurist and legal scholar. In addition to teaching law at Yale and serving as a federal judge, he had also been solicitor general under President Richard Nixon. But to many observers, his scholarly writings, his actions as solicitor general during the Watergate investigation, and his rulings from the bench also revealed a man whose judicial philosophy was, in the words of Senator Joe Biden, “out of the mainstream.”

Indeed, Bork had opposed federal civil rights legislation ending racial segregation, supported a state’s authority to criminalize the purchase of contraception by married couples, opposed First Amendment protection of anything except explicitly political speech, and believed that the Fourteenth Amendment’s equal protection clause—which prohibits states from denying any person within its jurisdiction equal protection of the law—did not necessarily provide judicial protection to women encountering gender discrimination.

Opposition to his proposed elevation to the Supreme Court was immediate. Less than an hour after Bork was nominated, Senator Ted Kennedy delivered a fiery speech on the Senate floor, warning that “Bork’s rigid ideology will tip the scales of justice against the kind of country America is and ought to be.” As Kennedy described it, “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 could 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—and is often the only—protector of the individual rights that are at the heart of our democracy.”

It was strong, evocative language, in part because of all the visual imagery his words summoned in people’s imaginations, such as women being forced into dangerous alleys, lunch counters for “whites only,” police battering their way into innocent people’s homes, and courthouse doors crushing the fingers of people seeking justice. In talking about courthouse doors taking off people’s fingers, Kennedy was speaking figuratively. But this use of metaphor was all the more powerful because it translated the denial of justice—an abstraction—into a more tangible pain that anyone could understand. According to Kennedy, were Bork elevated to the Supreme Court, petitioners might not be able to make their case at all, let alone receive a fair hearing.

Kennedy’s speech was just the opening salvo in months of heated public debate over Bork’s nomination, marked by aggressive advocacy on both sides. That September, in five days of testimony before the Senate Judiciary Committee, Bork performed poorly. Under sharp questioning, he remained calm and confident but came across as a humorless intellectual who lacked empathy for ordinary citizens, especially women, minorities, and the disadvantaged. As millions of Americans watched on TV, Bork variously defended his positions or suggested that many of

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