The Ever-Present History of 'Getting Borked' - Pacific Standard

The Ever-Present History of 'Getting Borked'

Allegations of meddling in Brett Kavanaugh's nomination have resurfaced a decades-old smear campaign on the court—one that conservatives are still salty about.
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Former Supreme Court nominee Robert Bork, pictured here in 2005.

Former Supreme Court nominee Robert Bork, pictured here in 2005.

With Brett Kavanaugh's confirmation process to the Supreme Court underway, Democrats have few options left to try to block his confirmation. There remains, however, one tactic with a track record of success, and some argue that Senate Democrats are already giving it their best shot: They are trying to Bork the president's nominee.

The verb "Bork" has its origin in another Supreme Court battle from 1987—the failed confirmation of Robert Bork. Nominated by President Ronald Regan, Bork entered a confirmation process that remains controversial to this day. Like Kavanaugh, Bork was a deeply conservative Washington, D.C., district judge; also like Kavanaugh, he faced immediate and scathing opposition from some civil rights groups and liberals. Bork's "originalist" views and perceived animosity toward civil rights (he had gone on-record supporting southern states' right to implement poll taxes) made him the target of a large, and ultimately successful, negative advertising campaign: The Democrat-controlled Senate blocked his nomination 58–42, with six Republicans also voting to reject him. Today, Democrats are a minority in the Senate. However, a successful attempt to turn the public against Kavanaugh could plausibly convince more moderate Republicans to oppose his confirmation.

While Supreme Court confirmations have often become contentious, many argue that the Bork debacle made Supreme Court politics veer into something closer to a popularity contest. Their argument goes like this: prior to Bork's confirmation show-down, the Senate's "advise and consent" role was limited to scrutinizing and confirming a nominee's "qualifications." Bork was undeniably qualified. He had held a prominent judgeship, worked as a solicitor general for the Richard Nixon and Gerald Ford administrations, and served as acting attorney general. Many conservatives said, and continue to say, that the Senate had no right to impugn his qualifications. The only reason, some claim, so many senators voted to reject him was because a smear campaign orchestrated by liberals effectively plummeted his public standing.

The historical argument here is shaky. After all, the Senate rejected two of Nixon's Supreme Court nominees for their poor civil rights records (which included support of segregation), and Dwight Eisenhower had a nomination initially fail in committee because of the nominee's allegedly far-left views. However, the Bork story proved controversial enough to enter the political lexicon as a new verb: Today, Merriam-Webster defines "Bork" as "to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification."

Republicans are already accusing Democrats of trying to Bork Kavanaugh. Senator Orrin Hatch (R-Utah) wrote an op-ed for USA Today declaring that the Dems had gone "borking mad" in their portrayal of Kavanaugh as a "cartoon villain." Writing in National Review, conservative pundit David French accused Senate Democrats of launching "frivolous" broadsides against Kavanaugh—attacks that French argued had more to do with the "#StopKavanaugh" crusade than the district judge's qualifications.

It is undeniable that Democrats and many on the left are pursuing a heavy negative ad campaign against Kavanaugh. But it is less clear if that campaign is pure "vilification." Just as civil rights groups mobilized to block Bork, pro-choice and women's rights groups have united to oppose Kavanaugh over the potential threat he poses to reproductive rights. And as special counsel Robert Mueller investigates President Donald Trump, government accountability watchdogs have raised alarm over Kavanaugh's refusal to weigh in on whether or not the president has the right to pardon himself. If the public opposition to Kavanaugh be classified as a "smear campaign," it appears it could be working: Recent polls have indicated that public support for Kavanaugh is historically low.

Additionally, as Republicans accuse Democrats of impropriety, some have countered by pointing to the Republicans' own history with recent Supreme Court nominees. In 2016, when President Barack Obama nominated Merrick Garland to the court, Senate Republicans refused to even consider the nomination—much less evaluate his qualifications. Others have pointed to statements made by Republican senators before the 2016 election announcing their intention to block any of Hillary Clinton's potential Supreme Court nominees.

As Kavanaugh's hearing continues into its third day on Thursday, it remains unclear if Kavanaugh will get Borked. Though, with 51 Republicans presiding over the Senate, Kavanaugh's confirmation seems more likely than not.

And, at any rate, "Getting Kavanaughed" does not have the same ring to it as "Getting Borked."

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