“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, school children could not be taught about evolution, writers and artists could be censored at the whim of the government.”But was it Kennedy's speed that doomed Bork or the fact that the Democrats had a majority in the Senate? More importantly, Bork's opponents in the Senate Judiciary Committee — led by Joe Biden — outsmarted him politically. As Richard Ben Cramer put it in his great book "What It Takes":
Bork kept talking about originalist jurisprudence, neutral principles of Constitutional Reasoning, the bankruptcy of the theory of penumbral emanations... while Biden talked about cops in our bedrooms!It wasn't the speed of Kennedy's initial attack as much as it was the slow dance of luring Bork into talking too much, revealing too much. He said he wanted to be on the Court because he's the kind of guy who views it as "an intellectual feast." The borking of Bork taught a lesson that I have seen reflected in the committee testimony of every Supreme Court nominee who has followed him. They never say too much, never reveal specific opinions about issues that will come before the Court, and always speak in terms of their dutiful adherence to precedent.
It just can't play out the same way again. And quite aside from the smartening up of the nominees to the game of their Senate antagonists and the lack of a Democratic majority in the Senate this time, the people have smartened up to politics. A fear-mongering speech like Kennedy's would not be received the same way today — even if there were a handsome Senator willing to say that kind of thing. Throughout the 2016 campaign, Democrats tried to scare Americans with material like that. It was a key — perhaps the key — reason to vote against Trump, and it happened with that empty Supreme Court seat making the threat as real as possible. And people voted for Trump anyway. Either we — those of us who voted for Trump* — did not believe the scary predictions were true or we — the Trump voters among us — actually want a seriously conservative Justice to take that seat.
And one more thing is very different from 1987. Mainstream media has lost its monopoly, and we bloggers and tweeters stand ready to call bullshit on hysteria and overstatement and one-sided presentation of the issues. Speaking of speed — Toobin's big idea for a powerful trick — bloggers and tweeters are oh-so-quick and if we'd been thrown a slab of meat like Kennedy's "Robert Bork’s America" — speaking of "an intellectual feast" — we would have gorged ourselves.
Now, to be fair to Toobin, he does also talk about something else, something recent, that happened quickly and that had to do with preventing a President's nominee from getting confirmed. When Antonin Scalia died, the Senate Majority leader, Mitch McConnell, immediately said the Senate would hold the opening for the next President to fill. That was not an attack on a specific nominee. Obama only named Merrick Garland a month later. There was never an attack on the man. It was always a pristine procedural point — love it or hate it. I've already mentioned Joe Biden in this post, and I'm about to say "Biden" again. Toobin never speaks the name. The procedural point is called "The Biden Rule." It was articulated by Biden, as chairman of the Senate Judiciary Committee, back in 1992.
The quickness of the invocation of the Biden rule had some importance, because it isolated the principle from the name of any particular person. We lived through a presidential campaign with the understanding that the winner would make the nomination. How could quick action against the person — in the Kennedy vs. Bork style — work? We all expect Democrats to denounce whichever person Trump names. A pompous, inflamed speech will either be ignored — as more of the blah blah blah we're so used to now — or it will be picked apart and mocked in social media.
I understand that Toobin has to write these essays for The New Yorker, and I assume he has readers who lap this stuff up, but I consider it deliberately obtuse if not perfectly silly.
* That is not meant to imply that I voted for Trump. I have not revealed my vote.