12/19/2012 03:38 pm ET Updated Feb 18, 2013

Opposition to Robert Bork Was Not 'Shameful'

Visit the National Review Online -- or any other source of conservative opinion -- following the death of Robert Bork, and you will see what has become close to conventional wisdom concerning his confirmation hearings. The actions of Senate Democrats, in particular then-Judiciary Committee Chair Joe Biden, "was one of the most disgraceful performances in the history of the Senate," wrote Jay Nordlinger on Dec. 19. As he tells the story, "Even some on the left came to have some guilt about the 'borking.'" Even the New York Times has given voice to the view that Bork's opponents were guilty of spreading "scurrilous lies."

Today, when partisanship has become synonymous with obstructionism, this criticism sounds justified. But the Bork nomination cannot be understood in isolation from its political background. The Bork nomination was correctly understood at the time as having the potential to "remake the Constitution," in the words of Laurence Tribe. The closing remarks of Sen. Kennedy's opening salvo against the Bork nomination, in which he declared that '[Reagan] should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and on the next generation of Americans," are informative. Democrats opposing Bork's nomination would have seen their votes as not just a stand against a particular judicial nominee but as a vote against the social agenda of an administration they felt was attempting to turn the page on the progress of previous decades.

Kate Michelman, the longtime president of NARAL and a leader in interest group-led opposition to Bork, was not posturing when she told television reporters that "we have researched [Bork's] background, and we know what he stands for." Bork's resume included a high-profile New Republic article that referred to federal enforcement of civil rights laws representing a "principle of unsurpassed ugliness." A short while later, Bork provided a memo attacking the Public Accommodations Act to Barry Goldwater's 1964 campaign. In the years immediately preceding his nomination Bork was very much a public figure, traveling across the country and railing against liberalism both on the courts and in academia. And Bork did not limit his focus to judicial issues and politics. For example, in a 1985 speech Bork critiqued what he saw as the prevailing "secularist doctrine." By the time he was nominated, Bork could correctly be identified, in the words of then-Boston Globe correspondent Ethan Bronner, as "the strong, lawyerly voice for the Reagan social program."

And this was how the Judiciary Committee explained its vote. In the Committee's report, Bork is portrayed as an opponent of civil rights legislation, a critic of decisions banning racially restrictive covenants and of bans on segregation, a critic of one person/one vote, a critic of decisions upholding bans on poll taxes and literacy tests, and as a judge who took a limited view of the Equal Protection Clause.

Senate Democrats may have been playing to a lay audience when they used Bork's hearings to highlight "freedom in the bedroom" as opposed to the more mundane legal issues judges spend most of their time dealing with. But this was a battle that Bork had joined long before Sen. Kennedy delivered his first harangue against the Judge on the Senate floor. Bork was a proud culture warrior, and his work after his nomination was defeated -- including a book, Slouching Towards Gomorrah, that provides an anthology of anti-gay screeds -- would seem to affirm this view. It hardly reflects poorly on Biden and his former colleagues that they recognized this at the time.