Elena Kagan thinks that the “Borking” of Robert Bork during his 1987 Supreme Court confirmation hearings would deserve a commemorative plate if the Franklin Mint launched a “great moments in legal history” dishware line.
This isn’t the time to rehearse the reasons why Kagan is wrong on that score. Still, one adverse result of the Bork hearings is worth dwelling on. Bork was the last Supreme Court nominee to give serious answers to serious questions. But because the left successfully anathematized him, no nominee since has dared show Borkian forthrightness.
Consider Monday’s high-court ruling: The Second Amendment right to own a gun extends to state and local government.
Rookie Justice Sonia Sotomayor concurred with Justice Stephen Breyer’s dissent, which held that there is no fundamental right to bear arms in the US Constitution.
“I can find nothing in the Second Amendment’s text, history or underlying rationale that could warrant characterizing it as ‘fundamental’ insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes,” Breyer wrote for the minority.
But when Sotomayor was before the Senate Judiciary Committee a year ago for her own confirmation hearings, she gave a different impression of how she saw the issue. Sen. Patrick Leahy asked her, “Is it safe to say that you accept the Supreme Court’s decision as establishing that the Second Amendment right is an individual right?”
“Yes, sir,” she replied.
Both Sotomayor and Leahy festooned their colloquies with plenty of lawyerly escape hatches. That’s why Leahy asked the questions the way he did, and that’s why Sotomayor answered them the way she did. It’s also why he spun her answers into more than they were.
“I do not see how any fair observer could regard [Sotomayor’s] testimony as hostile to the Second Amendment personal right to bear arms, a right she has embraced and recognizes,” he said, making it sound as though she was open to an expansive reading of the Second Amendment when everyone knew she wasn’t.
Here’s the point: Sotomayor wasn’t an exception to the rule; she was following it.
Although the Bork inquisition was a largely partisan affair, the consequences have yielded a bipartisan sham. Republican and Democratic nominees alike are trained to say as little as possible and to stay a razor’s width on the side of truthfulness. The point is not to give the best, most thoughtful or most honest answer, but to give the answer that makes it the most difficult for senators to vote against you. It’s as if we expect nominees to demonstrate everything we hate and distrust about lawyers one last time before they don their priestly robes.
No one’s shocked that Sotomayor has showed herself to be the liberal we knew her to be. But the fact that everyone was in on the lie is just further evidence of the sham such hearings have become.
That’s why Kagan should be the hero of this tale. She has vociferously argued that the “Bork hearings were great . . . the best thing that ever happened to constitutional democracy.” She has lamented how, ever since, such hearings have become nothing more than “a repetition of platitudes.” Kagan once implored senators to dig deep into the nominee’s “constitutional views and commitments.”
Alas, it doesn’t look like Kagan will be following the Kagan standard. On Tuesday, she distanced herself as best she could from those views. When asked by Sen. Jeff Sessions whether she’s a “legal progressive” — which pretty much all objective observers and her own friends and former colleagues know her to be — the brilliant and scholarly Kagan claimed to have no idea what the term even means.
After his rejection by the Senate, Bork wrote a masterful book, “The Tempting of America: The Political Seduction of the Law.” The title of the book on Kagan might well be titled “The Tempting of Kagan: The Political Seduction of the Process.” JonahsColumn@aol.com