To Bork or not to Bork

The nomination of Clarence Thomas to the Supreme Court recalls to mind President Reagan’s nomination of Robert Bork–perhaps the most controversial nomination in decades.

Under the Constitution, the President has the power to nominate people to various offices. The Senate’s role is to give “advice and consent.” But in the case of Robert Bork, the Senate did a whole lot more. It unleashed a public relations campaign viciously attacking Judge Bork.

The confirmation hearings took on the atmosphere of a circus.

The Senate’s ungentlemanly conduct gave birth to a new verb: to Bork someone. When Clarence Thomas’s nomination was announced, a lawyer for the National Organization for Women (NOW) said, “We’re going to Bork him. We need to kill him politically.”

It won’t be easy to “Bork” Judge Thomas, though. With his first-hand experience of poverty and prejudice, Thomas could hardly be accused of not being sensitive–a favorite liberal charge against Judge Bork. Columnist George Will says he’s chuckling in anticipation of high-born senators having the audacity to lecture Thomas on poverty and racism.

It makes you wonder what role the Senate is supposed to play in presidential nominations. That’s a question I confronted myself in the 1970s, when I was counsel to then-President Nixon. One of Nixon’s nominations to the Supreme Court turned out to be controversial. Several Senators opposed the nomination.

As Nixon’s assistant, I decided to do a little research into the history of the Senate’s role. Studying the Federalist papers, I made a remarkable discovery. The drafters of the Constitution decided that the President should have the power to appoint judges and cabinet officers. But late in the debate over the Constitution, the question was raised, What if the President were to appoint someone from his own state, or an old crony, or worse, a family member–nepotism? So the “advice and consent” clause was added specifically to prevent such abuses.

It was never intended to give the Senate equal say with the President over appointments.

But gradually Senators lost sight of the original purpose of the clause. They began to do far more than it called for. They took it upon themselves to filter a nominee’s political views, and to reject anyone they disagree with–to impose a grid of political correctness.

It began in the 1970s, with that controversial Nixon nomination. At the time, I drafted a letter for the President, arguing that the Senate was overstepping its constitutional bounds.

Nixon liked the letter and sent it to an influential Senator. It created an instant controversy. The senators were decidedly unhappy at being told that their role was limited.

But it looks like someone needs to tell them the same thing again: Send them back to study the Constitution and show them that they are going way beyond their constitutional powers.

Whatever the outcome of the current hearings on Clarence Thomas, they highlight once again the way the Senate is overreaching itself. Dare we hope that men and women of good will might work together to restore that delicate balance between the executive and legislative branches intended by the Founders?

And, oh yes–that the word to Bork will be erased forever from the political lexicon.

This is sixth of a seven part series on Clarence Thomas.


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