National Public Radio was quite good at historical re-enactment on Thursday night's All Things Considered. The Nina Totenberg obituary on Reagan's defeated Supreme Court nominee Robert Bork carried almost all the original liberal invective. She included then-Washington Post TV critic Tom Shales, who wrote "He looked and talked like a man who would throw the book at you, and maybe the whole country."
There were glaring exceptions. Totenberg had no soundbite of Sen. Ted Kennedy's vicious, smearing "Robert Bork's America" speech and no clip of the People for the American Way "campaign ad" against Bork narrated by the actor Gregory Peck, as if Bork were a candidate for president. (Video below)
The choice of Peck even carried the overtones of Atticus Finch in To Kill a Mockingbird. Bork could subtly be linked to Deep South racial injustice.
Notice how much Totenberg's summary of Bork's record neatly matches the liberal indictment about everything he allegedly opposed:
TOTENBERG: By the time President Reagan appointed him to the U.S. Supreme Court in 1987, Bork had spent five years as a federal appeals court judge and had in both his judicial and academic roles amassed a long paper trail of controversial legal writings. He opposed the Supreme Court's one man, one vote decision on legislative apportionment. He wrote an article opposing the 1964 Civil Rights Law that required hotels, restaurants and other businesses to serve people of all races. He opposed a 1965 Supreme Court decision that made contraceptives available to married couples. There is no right to privacy in the Constitution, he said. And he opposed Supreme Court decisions on gender equality, too.
That record prompted liberals and civil rights activists to launch an all-out campaign to defeat him, including mass mailings, lobbying and TV ads. Nonetheless, two months later, when the confirmation hearings began, public opinion was still on Bork's side. The hearings, however, would not work to his advantage. Known as a charming and witty man in private, Bork was dour and humorless in public. And his answers seemed to play into the stereotype liberals were painting of a man who cared little for the public. When Republican Alan Simpson pitched a softball to Bork asking him why he wanted to be a justice, here is how the nominee replied.
ROBERT BORK (1987 hearings): I think it would be an intellectual feast just to be there and to read the briefs and discuss things with counsel and discuss things with my colleagues.
NINA TOTENBERG: TV critic Tom Shales would write of the testimony: He looked and talked like a man who would throw the book at you and maybe the whole country. In the end, Bork was defeated by a vote of 58-42, the largest margin in history. The whole episode, however, enraged many Republicans. Bork's name became a symbol of conservative grievance, and a new verb was born: to Bork, defined in the dictionary as to defame or vilify a person systematically.
This was the natural spot in the story for Teddy and Gregory Peck, to illustrate the conservative grievance. But there was nothing for conservatives, including no pro-Bork soundbite. Instead, Totenberg turned to her former intern, Tom Goldstein, as she often does, without letting people in on their working relationship:
TOM GOLDSTEIN: The nomination changed everything, maybe forever.
NINA TOTENBERG: Tom Goldstein is publisher of the leading Supreme Court blog.
TOM GOLDSTEIN: Republicans nominated this brilliant guy to move the law in a dramatically more conservative direction. Liberal groups turned around and blocked him precisely because of those views. Their fight legitimized scorched-earth ideological wars over nominations at the Supreme Court. The upshot is that we have this ridiculous system now where nominees shut up and don't say anything that might signal what they really think.
NINA TOTENBERG: The whole experience embittered Bork and hardened his conservative positions. He resigned his lower court judgeship and soon became a popular author, speaker and culture warrior. In "Slouching Towards Gomorrah," he inveighed against liberals, premarital sex and working mothers. A decline runs across our entire culture, he wrote, and the rot is spreading. Nina Totenberg, NPR News, Washington.
The Bork fight certainly set the table for Totenberg's most infamous attempts to derail GOP Supreme Court nominees -- her successful takedown of Douglas Ginsburg on charges of marijuana use (he withdrew) and her failed character assassination of Clarence Thomas on unsubstantiated sexual harassment charges in 1991 (confirmed 52-48).
But a conservative rebuttal of Goldstein might have asked how there was "scorched earth" warfare over Clinton nominees Ruth Bader Ginsburg in 1993 (Senate vote 89-3) or Stephen Breyer in 1994 (87-9). After Democrats like Barack Obama voted against Bush's nominees (22 votes against Roberts, 42 against Alito), the Republican vote count was 31 against both Sotomayor and Kagan.
None of these nominations have been as rough as the ones Bork and Thomas suffered. NPR and Totenberg never apologize for being an eager and willing participant in "scorched earth" liberal warfare.