November 1, 2011

I have been critical of conservatives for using inflammatory language, for making outrageous accusations and for obstructive tactics. Is that unfair? Do they have justification? Joe Nocera, one of the recent additions to the opinion pages of The New York Times, would say yes. In a recent column he argued that liberals are responsible for the present state of politics.

On October 22, he noted the anniversary of the rejection, in 1987, of the nomination of Robert Bork to the Supreme Court. He thinks that the nastiness in contemporary politics started then and, since the guilty parties were Democrats, they now are in no position to complain. “His nomination battle is . . . a reminder that our poisoned politics is not just about Republicans behaving badly, as many Democrats and their liberal allies have convinced themselves. Democrats can be -- and have been -- every bit as obstructionist, mean-spirited and unfair.” I wouldn’t greatly disagree with that if it were simply an historical statement, a description of a single episode. Leaving out “every bit as,” it is a fair critique of aspects of the Bork nomination process. However, Nocera’s claim that the “the line from Bork to today's ugly politics is a straight one” doesn’t follow. It rests on three arguments.

Bork should have been confirmed

This conclusion is implied, but clear. Nocera began by emphasizing Judge Bork’s credentials:

The rejection of a Supreme Court nominee is unusual but not unheard of . . . . But rarely has a failed nominee had the pedigree -- and intellectual firepower -- of Bork. He had been a law professor at Yale, the solicitor general of the United States and, at the time Ronald Reagan tapped him for the court, a federal appeals court judge.

Moreover, Bork was a legal intellectual. . . .

He then argued that Bork’s views (he mentioned Roe v. Wade and the First Amendment’s application to pornography) could not “be fairly characterized as extreme.” It is true that Bork’s views on specific legal principles were not as extreme as some claimed, but there was a more general, issue. As Bork conceded, the issue was judicial philosophy. The Judiciary Committee and the Senate decided that his would not serve the Court or the country well, which was correct. One of his supporters offered this test for confirmation during the hearings: whether the nominee’s views were “within the acceptable range of contemporary American legal thought.” The Committee and later the full Senate decided that they were not, and they were right. My comment at the time was this: “He is, I think, outside the mainstream in two related, fundamental ways: he views the law primarily as an intellectual exercise, not as a vehicle for doing justice & equity, and he lacks humane instincts, or as [former Attorney General Nicholas] Katzenbach kindly put it, judgment.” Ironically, Judge Bork confirmed the former point in a book written following, and largely about, the hearings, The Tempting of America: The Political Seduction of the Law .

Behavior during the nomination is the cause of inflated rhetoric in the present.

Nocera argued that “[t]he Bork fight, in some ways, was the beginning of the end of civil discourse in politics.” I don’t know whether “in some ways” was intended to refer to a specific qualification; if so, it wasn’t stated. In any case, the argument that the nomination battle explains present-day Republican tactics and language is implausible. One might as logically excuse Democratic behavior toward Bork as a reaction to the Hiss hearings.

Nocera offered this as evidence: “For years afterward, conservatives seethed at the ‘systematic demonization’ of Bork, recalls Clint Bolick, a longtime conservative legal activist.” It’s true that some of the attacks on Bork, especially before and during the Judiciary Committee hearings, were full of distortion and exaggeration and, although they didn’t typically include direct character assassination, that was the effect.

Nocera offered two examples. One is a speech by Senator Kennedy, delivered before the hearings, about “Bork’s America,” in which “women would be forced into back-alley abortions, blacks would sit at segregated lunch counters . . . ." That was unfair and inflammatory, and may have encouraged other excesses. The second is a memo by the Advocacy Institute, “a liberal lobby group” which, according to Nocera, described Bork as "a right-wing loony," and proposed that he be portrayed "as an extreme ideological activist." The former, assuming it was stated in public, was out of bounds, although perhaps too silly to be taken seriously. Whether the latter was fair comment at the time could be debated, but Bork certainly put himself in that category with his 1996 book, Slouching towards Gomorrah: Modern Liberalism and America’s Decline .

Nocera is not alone in finding some long-term effect on attitudes. David Brock, in Blinded by the Right: the Conscience of an Ex-Conservative, said that “[f]or the conservative movement, the hardball tactics of the anti-Bork effort would give license to mount a decade-long campaign of revenge and retribution.”⁸⁷ (He didn’t identify the end point of the decade, but presumably it was the Clinton impeachment). However, the excesses in Republican and conservative rhetoric can’t be traced to the Bork nomination. There are two principal considerations.

First, the rhetoric of the right is characterized by a different type of personal invective. Republicans and conservatives have accused Democrats and liberals of being, at best, less than real Americans and, at worst, traitors. Tea Party signs claiming that the President is a foreigner, a communist, a fascist, or the antichrist are in this mode. During a Congressional election a few years ago, a local political flier attacked the Obama health care proposal as "socialized medicine" and to be sure we didn't miss the point, that this is un-American, it included a picture of a Soviet officer. Senator Rand Paul, referring to oil-spill culprit BP, accused President Obama of sounding "un-American in his criticism of business." There are many examples.

Some rhetoric goes beyond denunciation. Ann Coulter produced the following gem at a meeting of the Conservative Political Action Conference in 2002 (and was invited back):

In contemplating college liberals, you really regret, once again, that John Walker is not getting the death penalty. We need to execute people like John Walker in order to physically intimidate liberals by making them realize that they can be killed too. Otherwise they will turn out to be outright traitors. . . .

Second, this was not a new phenomenon in or after 1987; it existed at least as early as the McCarthy era. As one reporter put it, “Over the decades Democrats have been targeted by political attack campaigns that employ the same defamation and distortion tactics used in the McCarthy years, campaigns that smear opponents with charges of being un-American, unpatriotic or, as the nation witnessed again during the 2004 presidential election campaign, of giving ‘aid and comfort’ to America's enemies.”⁸⁸

Behavior during the nomination is the cause of obstructive tactics in the present .

At the end of his column, Nocera returned to the first term in his description of “obstructionist, mean-spirited and unfair” behavior: “The next time a liberal asks why Republicans are so intransigent, you might suggest that the answer lies in the mirror.” As with rhetoric, so with intransigence: it’s difficult to take seriously the notion that Republicans stubbornly oppose President Obama’s policy proposals because they still are mad about the rejection or treatment of Judge Bork. They obstruct when they cannot prevail because they adhere to a platform which seeks not only to prevent new progressive initiatives, but to march us backward by many decades. The illustrations of that are too numerous and familiar to require repetition.

As to both points, Nocera didn’t attempt to justify the behavior of contemporary Republicans, but merely shifted the blame, in essence giving them a pass. At some point, present blame for present actions must be assessed, especially for a group claiming to be champions of personal responsibility.

_______________________

87. P. 47
88. Haynes Johnson, The Age of Anxiety: McCarthyism to Terrorism, p. 462