Presswatch/Anti-Borking
Eastland, Terry
PRESSWATCH ANTI-BORKING by Terry Eastland O n August 12, 1937, Franklin Dela- write and raise hell. Nowadays ten or nition to Paul Johnson's term for the position. "Never before had I felt so no...
...The specter of another "borking" looms large in the Bush White Houseand among conservatives outside it...
...The White House had no trouble in pushing this angle...
...No one bothered to ask Tom Brokaw turned to none other than man Black believed were specimens of Constitution...
...No jargon...
...Then er...
...Payment enclosed...
...40 THE AMERICAN SPECTATOR NOVEMBER 1991...
...nation and confirmation hearings...
...This attempt finally collapsed when during his hearings Thomas disavowed natural law as an independent basis for constitutional decision-making...
...whether doing the latter might put one Tribe, and only Tribe, for an interview that very same "natural law due process Finally, the press failed to scrutinize at risk of doing the former...
...Times's Supreme Court reporter, LinHugo Black...
...Typically, NBC's tury, right-of-contract cases that our for the understanding set out in the phrases...
...Not only that, every issue of The Companion is written with wit and style...
...Like borking, anti-borking takes advantage of press proclivities...
...NBC's coverage probably Court's decision in the 1965 Griswold Robert P. George had it exactly right in he would vote against Thomas if the stemmed from Laurence Tribes partisan case because it was "natural law due an op-ed in the Washington Post "The nominee thought the Court should aphit on Thomas and natural law in the process philosophy...
...10010 LTAS 11/91 ual rights...
...Never before had I felt so no Roosevelt nominated his first so weeks usually pass between a nomi- modern Western state`Media Democ- much like raw meat," said the New York Supreme Court Justice—Alabama Sen...
...The Conservative Victory Committee and Citizens United produced the most provocative spot...
...Moreover, the existence of principles of natural justice ply natural law above the Constitution, New York Times in July, which suggest- press failed to see the relationship be- does not entail the proposition that yet he also thought Thomas should use ed Thomas might invoke natural law to tween the Court's approach in Griswold judges are authorized to substitute their natural law to interpret the Constituwipe out the social and moral agenda and its approach in the turn-of-the-cen- own understanding of these principles tion's "great, yet sometimes ambiguous, of modern liberalism...
...It did not tout Thomas's credentials but instead took dead aim at three of the Judiciary Committee's liberal senators who would "judge" him: Biden, Kennedy, and Cranston...
...For Once embarked on, borking is easy...
...Three conservative groups took Ireland at her word, and decided to do some anti-barking of their own by putting ads on television just before the hearings began...
...It's written by mavens-turned-writers...
...natural law does not depend upon theological argument, and down through the ages it has been supported by atheists like Helvetius, agnostics like Thomas Paine, and deists like Thomas Jefferson—not to mention authorities in the Jewish, Roman Catholic, and Protestant traditions...
...That schedule is a matter of Senate to frame the debate over Bork...
...As long as Murphy's unseen hand runs the world, a lot can go wrong, and when it comes to investing, a little warning can help you avoid a lot of headaches...
...As the Souter and Thomas nominations show, such a nominee should have little judicial experience and he must not have ruled on much of anything that could be used against him politically...
...Name Company Address City State Zip The Capitalist's Companion JOURNAL OF POLITICS AND THE FINANCIAL MARKETS 175 Fifth Avenue Suite 2503 New York, N.Y...
...Our knowledge of the financial markets comes from years of pick-and-shovel work in the research departments and on the trading floors of top Wall Street firms...
...Thomas and Bush (and Sen...
...Then there was NBC, which said on the eve of the hearings that Thomas had taken "controversial positions," such as that natural law may "supersede individ38 THE AMERICAN SPECTATOR NOVEMBER 1991 Go ahead, ask...
...Among other things, Biden said and writings...
...7 days a week ( ) Please start me out with a 5-issue trial subscription for $19...
...Today we forget that it was little reported and did not air much until White House spokesman Marlin Fitzwater attacked it...
...But the press, particularly television news, does not always respect the distinction between case results and legal reasoning...
...A writer of People for the American Way's anti-Bork ads told Ethan Bronner that they amounted to a "public announcement of a liberal counteroffensive...
...These studies went unchallenged in the press, which failed to see the implication that judges decide cases not on the merits but on who the plaintiff or defendant is...
...Spineless Senators can thus base their opposition on "objective" polling results...
...To judge by the decisions they have written, all three are judicial conservatives, but only Bork had achieved distinction as a legal thinker or engaged the great legal issues of our time...
...Black was still a Klansman, having been to any campaign to stop a nomination...
...The battle four years ago over the In tribute to the 1987 battle, this year secretly voted life membership in 1926...
...Ralph Neas of the Leadership Conference on Civil Rights, a ringleader of the forces that borked Bork, complained that the resultant "fluff" coverage of Thomas directed public and press attention away from the nominee's judicial philosophy...
...In the end, it was almost an afterthought that the ad ran in paid slots on CNN and Fox...
...The ad noted that Kennedy was suspended from Harvard for cheating and that Biden had been "found guilty of plagiarism during his [1988] presidential campaign...
...We won't always be right...
...Yet Thomas is no Bork...
...No double-talk...
...The press to Tribe but also to some judicial activ- who took it upon himself to assail tion that provided the basis for consti- routinely said that in the past half cen- ists on the right, the press likewise did Thomas's thinking on natural law...
...We felt it was time for us to say, `You can't set the tone anymore.'" The Conservative Victory Committee ads show that People and company now have competition...
...ABC's Tim published a series of articles about the White House, and the parties strug- ity, and today fair reporting on a nomi- O'Brien later told Bork, "We failed Black's membership in the Ku Klux gle over the direction of the Court, a nation, especially in the face of well-or- to challenge many of those who made Klan during the 1920s and charging that drawn-out schedule gives broader scope ganized opposition to it, is harder than statements regarding your nomination...
...And because legal the confirmation vote to report and matters are at issue, those opposing the nominee can focus attention on the poTerry Eastland is a resident fellow at the litical implications of his judicial record, Ethics and Public Policy Center in Wash- leaving it to him to explain the often ington, D.C...
...Soon enough, Judge Thomas and President Bush denounced its "viciousness...
...Natural law adherents may disagree on how constitutional protections apply to the unborn, but they do not disagree on the broad point (as Peter Steinfels, the New York Times's excellent religion writer, put it) that natural law refers to "objective standards of right and wrong that human reason can discern as inherent to the nature of humans and the world about them...
...more difficult confirmation today...
...Our background is outside the mainstream of the financial press...
...So now, in the Souter and especially the Thomas nominations, the nation has experienced a counter effort that deserves its own name—l'anti-borking...
...1-800-966-6567 24 hours a day...
...The Capitalist's Companion isn't written by writers-turned-stock-market-mavens...
...THE AMERICAN SPECTATOR NOVEMBER 1991 37 Treating the nominee as a political candidate, borkers aim to create an ogre the public cannot accept...
...to put the nominee on the defensive, Hugo Black, generally regarded as thus denying him the traditional preone of the most important Justices ever sumption in favor of confirmation and to sit on the Court (and he sat for thir- creating an atmosphere in which the ty-four years), would have faced a far Senate can more easily vote no...
...I'd like to subscribe for a year (17 issues) at $120...
...in Bork's case, an enemy of privacy and civil rights, far outside the American "mainstream...
...Bork's along came Ray Sprigle, a reporter for discretion, and in an era in which Demo- T t is axiomatic, of course, that with opponents used the press, and the press the Pittsburgh Post-Gazette...
...Cancel anytime if you're not satisfied...
...John Danforth, Thomas's Senate guardian) had no choice but to distance themselves from the Conservative Victory Committee ad, but no press expert would have expected their criticism to do anything but ratchet up the story's news value...
...In the end, Thomas was not borked, due both to the anti-borking strategy behind his selection and to the anti-borking ads that ran on the eve of his hearings...
...On this ing the hearings, Biden set forth his references to natural law in his speeches Black (him again) objected to the distinction, Princeton political scientist views...
...Yet the coverage of Thomas on natural law, and the press treatment of natural law generally, was muddled and mindless...
...Try The Capitalist's Companion at a special trial rate: five issues for $19...
...Neither, for that matter, was David Souter or Anthony Kennedy...
...The idea is pletely abandoned the group...
...In a tutional amendments and federal laws tury no nominee, much less any Justice, not distinguish between natural law as long piece in the Washington Post two protecting the individual rights of blacks had ever relied upon natural law in con- a moral philosophy and natural law as a days before the hearings began, and dur-the underlying reason for Thomas's stitutional interpretation...
...The borking of Bork had also seen an ad that bred controversy—People for the American Way's infamous spot with Gregory Peck saying Bork endangered civil rights, privacy, and free speech...
...The press, especially television, feeds on human interest stories, and Thomas's rise from the poverty and segregation of Pin Point, Georgia, is extraordinary...
...NBC did not point out that Missing even from the print treatment Perhaps because it listened not only en, the Judiciary Committee chairman it was the Founders' natural law tradi- was some important history...
...So are our insights...
...Thomas knew what was up: They're trying to use that to get me, he told a reporter...
...No run-on sentences...
...As Alabama Sen...
...The Big Three networks featured stories that required showing some of its contents, and it enjoyed front-page play in major newspapers...
...Neas, of course, was expressing the frustration of someone who had just been anti-borked...
...philosophy...
...Simply stated, to anti-bork is to prevent or arrest the borking process that would place a nominee on the defensive and lead to his rejection...
...Who judges on Thomas and natural law...
...Anti-borking requires, in the first place, the selection of a nominee less vulnerable to a borking...
...the muddleheadedness of Senator Bid- the judge indeed...
...racy...
...Anti-Bork groups also sponsored "studies" of his judicial record that indicated, for example, how many times he sided with business plaintiffs...
...That's why The Capitalist's Companion was one of the few publications to predict that the recession would be more stubborn than the consensus predicted...
...Such a timetable greatly augments the nomination of Robert H. Bork showed has seen the usage of the verb "to bork" Reporters besieged a vacationing Black, power of the press, lending further defi- that the press is often guided by the op- and the gerund "borking" come into its who fmally, three days before he donned own...
...Or fill out the form below...
...To bork is to wage a political camthe robes of a Justice, went on national paign against a nominee, using all the radio to say he had resigned from the modern tools of electoral politics, inKlan and "never rejoined," having com- cluding paid and free media...
...Bill me...
...That sound-bite was misleading and incomplete...
...To order, dial the toll-free number...
...Five days later the Senate (Black did not have to face those, eith- da Greenhouse, of the liberal effort confirmed its former colleague...
...It remains a hoary myth, still peddled even during the Thomas confirmation, that Bork defeated himself through his testimony...
...Bork, of course, had spent six years on the federal appellate bench, where he ruled on certain cases of more than passing interest, such as the one his mendacious opponents used to suggest that he favored the sterilization of women...
...CBS defined "natural law" as "a code of ethics handed down from God...
...Not so...
...dry-as-dust reasoning behind it...
...The McLaughlin Group" gave the ad an advance screening on Labor Day Weekend, which guaranteed it plenty of additional free press...
...Richard Shelby told the Boston Globe's Ethan Bronner, author of Battle for Justice, by the start of the hearing "things were set in concrete politically...
...N otwithstanding the anti-borking that would make her task impossible, Jill Ireland of the National Abortion Rights Action League boasted in August that the left would "bork" Clarence Thomas...
...In fact, the Bork nomination was on the defensive before the hearing was gaveled down...
...And that long term interest rates were headed lower...
...But we'll always askthe question that stockbrokers and the financial biweeklies don't ask enough: "What can go wrong...
...Polling is essential here, and in recent years pollsters have obliged the borkers by taking the public's temperature at crucial junctures, with questions framed in terms of politics (not law) in order to denigrate the nominee...
...Sheer illiteracy...
...CBS also defined natural law as the "idea that certain rights, like those of fetuses, should be protected by the Constitution...
...T he greatest potential for a borking I of Thomas seemed to lie in twisting his natural law comments to make him out as a weirdo...
...Hugo rule of constitutional decision...
...one thing, Ray Sprigle and his press col- Given the non-elective nature of the poleagues would have had more time be- sition, a Supreme Court nominee can't tween the moment of nomination and fight back in kind...
...The Thomas nomination is illustrative...
...His defeat was a lock...
...With their preemptive strike, the ad's producers proved as skillful as the borkers did in 1987 in attracting free media attention...
...Sprigle crats control the Senate and Republicans 1 more power comes more responsibil- allowed itself to be used...
...we'll bill you...
Vol. 24 • November 1991 • No. 11
