July 12, 2005

"Taking the judicial Fifth" and the Bork cautionary tale.

It's been so long since we've had a new Supreme Court nominee that you may have forgotten what the Senate Judiciary hearings are like. Or you may be too young to have ever followed one. Here's the reason you shouldn't expect too much excitement: the nominee will repeatedly and routinely refuse to answer questions -- and get away with it by portraying the refusal as a matter of lofty judicial principle.

The one recent nominee who did engage with the committee on substantive issues was Robert Bork, who is also the one recent nominee to be voted down. The linked article puts it this way:
At the outset of his confirmation hearings, Judge Bork declared, "I cannot, of course, commit myself as to how I might vote on any particular case." But Judge Bork had written and spoken extensively and provocatively on issues like free speech, sex discrimination, "equal protection of the laws," abortion and sexual privacy, and there was no way he could escape questions on such matters. Mr. Specter was especially aggressive in his questions, and Judge Bork often recanted and qualified his controversial views in ways that satisfied no one.
There may have been "no way he could escape questions," but he could have used the standard dodge and escaped answers. By answering, he gave the Senators opportunities to make him look bad, and he simply lacked the will or the ability to protect his on-camera image. I'm sure he realized soon enough that deflecting the questions in the usual style would have been the better strategy.
In the aftermath, Judge Bork said that the intense questioning of him on constitutional issues was improper and that the only people who could stand such scrutiny and be confirmed were those with such thin records on constitutional topics that they could duck the questions.
Well, if the questions were improper, he didn't have to answer them other than to politely note the impropriety. He chose to debate, and -- I think -- he chose it because he seriously believed he knew constitutional law far better than the Senators. But they knew TV better, and he was pompous and professorial. His belief in his own superiority showed. And people do not like the look of that on television. His notion that only people with thin records can survive the questions is another example of Bork displaying a superior attitude. If he'd just reined in that attitude and "taken the judicial Fifth" like everyone else, he'd have made it.

And now that everyone has his case to study as a cautionary tale, who will ever engage on the substantive issues again? So don't get too excited about what's going to happen at the hearings. They will -- almost surely -- be dull. Unless you find the usual senatorial preening and posturing amusing.


DaveG said...

That bodes ill for me, then, since I find the usual sentorial posturing and preening infuriating.

vnjagvet said...

Great point, Ann. I think Fred Thompson's care and feeding of the nominee will help prevent a repeat of Bork's poor showing.

I always thought he took the bait like many expert witnesses do when cross examined about stuff on which they don't need to give an opinion.

Dirty Harry said...

This post is dead on. Nothing catches me more hell with my fellow right wing extremists than when I blame Bork for his own undoing. But it's true.

I'm not saying the Democrats and their allies in the media didn't behave terribly, but Bork took the bait.

He's the reason he's not on the court. Period.

Brendan said...

Sorry, Prof, but the fix was in. Kennedy's hysterical "back-alley abortions" screed predated the Bork Q&A by several weeks. He could have read to the blind or helped countless old ladies across the street and it wouldn't have amounted to squat. He had to be destroyed. And since he wasn't in a position to be popularly elected, his television appeal is/was irrelevent. I can't think of a single person who watched the hearings, then phoned up their Senator and said "Don't vote for this man!" Not likeable? Fine. Not qualified? Bullsh*t. I don't fault him for not "playing it safe." On the contrary, engaging in issues and ideas--even at your own peril--is admirable.

Elizabeth said...

Thanks for this post, Professor. It captures the event perfectl, and offers us a new reflexive verb to play with: go Bork yourself; D'oh! I Borked myself! Oh, Bork me!