Saturday, October 06, 2018


October, 1987

It was my second month of law school.

By that point, I had convinced myself that I somehow belonged at Yale Law, mixing with people who seemed more sophisticated and worldly that me, a guy who had entered the law by serving summons and complaints in Detroit. I had made friends and found my voice in class. It was a fascinating group of people-- it still is.

The school was in an uproar. President Ronald Reagan had nominated Robert Bork, a man who had spent 16 years teaching at Yale Law, to the Supreme Court. He had left a deep imprint at the school, where his students included Bill Clinton, Hillary Clinton, Jerry Brown, John Bolton, Anita Hill, and Robert Reich.

Bork himself had grown up among privilege. He graduated from the exclusive Hotchkiss School in Connecticut, then went on to the University of Chicago for both college and law school. As an academic, he was one of the early proponents of "originalism," which holds that a judge should interpret the Constitution by looking at its original intent rather than any re-interpretation within a modern context.

Part of his hardship as a nominee came from his legacy as a scholar; he had written extensively in critique of the line of cases that announced a right to privacy for such things as contraception, and had also been critical of the Civil Rights Act of 1964.

People were worked up about the nomination and some (including Ted Kennedy) were unfair. At school, the debate was intense both in the classrooms and on "The Wall," a free-speech zone on the first floor that hosted whatever screed the students chose to attache to the wall with tape.

And then the Senate voted, 58-42, against confirming Bork. Reagan reacted quickly by nominating Anthony Kennedy, who was confirmed without dissent.

Looking back, one striking thing about the Bork fight was that Bork himself did not seem very political. Rather he was a theory guy-- conservative theory, yes, but largely unattached to party machinations. His one seemingly political move was an epic disaster. That was his role in Richard Nixon's "Saturday Night Massacre" where Nixon fired people at the DOJ (both the Attorney General and the Deputy Attorney General) until he came to an Acting AG, Bork, who was willing to fire Archibald Cox, the special prosecutor who was investigating Watergate.

Bork was hurt by the Senate's rejection. He quit his seat on the DC Circuit and decamped to George Mason Law School, where he taught for years.

I saw him once, getting a big soda at the WaWa in New Haven by the law school. This was after that crushing vote; I don't know what he was doing back at Yale. He got his drink, I got my hot dog. I held the door for him as we left, and each walked out into the night.

Wonderful post, Mark. Thank you.

An Aside: Thank you also for your clarification in the comments section of your 3 October post. Based on your response, and upon further reflection on my part, I clearly see now the distinction between publicly announcing you wished you had not written a letter in support of your acquaintance Judge Kavanaugh (before the hearing) and publicly and formally withdrawing your letter of support by countermanding letter (after the hearing). You make an important and fair point.

As for today's post, please allow me to add to your history. As you well know, Ronald Reagan nominated another DC Court of Appeals judge, Douglas H. Ginsburg to replace the Lewis Powell seat after the take down of Bork but before the ascension of Anthony Kennedy. Ginsburg ran into immediate problems for his youthful indiscretions (marijuana use and divorce and other cultural oddities) and also charges (later debunked) that he might have committed crimes during his days in the Reagan DOJ. He went back to the Circuit Court and proceeded to enjoy a distinguished multi-decade career in that venue.

As for Kavanaugh, a few thoughts. I never loved him before the nomination--and I think I still don't love him. Frankly, based on the news reports, he seems more like a person I might have taken a swing at on the intramural field than befriend in the residence hall back in the day (but that may be more of an indictment of my college years than his). Frankly, I am not a fan of more Yalies on the SCOTUS. The I-95 corridor also seems over-represented. And, even as I love Catholics, I wouldn't mind seeing a Southern Baptist on the Court one day.

On the other hand, I support Kavanaugh's confirmation at this point. As you said at the beginning of all this, he is clearly well qualified. His 30 years of professional life indicate proper temperament and respect for this position. Dr. Christine Blasey Ford's charges are extremely serious and represent evidence that demands a verdict. But, based on the lack of corroborating evidence and the totality of evidence, I agree with Senator Collins that it is more likely than not that Brett Kavanaugh in NOT a sex offender, guilty of indecent exposure, or complicit in gang rape.

Also, I am worried about our system. I do not fault Kavanaugh for his display in the 27 September hearing (for two reasons): 1. If he was indeed falsely accused, he reacted within the universe of acceptable behavior for an innocent man wrongly persecuted (on display was his temperament as a defense attorney fighting for the public life of his client, albeit himself, much more so than a judicial temperament; 2) More personally, I have long simmered over the high-handed spectacle of congressional hearings in which elected officials berate citizens wrapping themselves in the cloak of constitutional oversight even as they steamroll individuals lacking the power to defend themselves. And I have long suspected that these public displays are mostly calibrated to increase the reputation and political viability of said politicians--having very little to do with truth seeking or pursuit of the public good. In short, I was really glad to see somebody finally take a shot at these arrogant hypocrites sitting on high. Well done!!!

It is noteworthy that Judge Kavanaugh, if confirmed as Justice Kavanaugh, will make 3 justices on SCOTUS who will remember that the Senate Judiciary Committee hearings reduced their wives to tears. Not good. Systemic flaw in the process. Dire need to rethink.

Not a total Kavanaugh fan--but confirming him seems necessary to take a stand against the circus we watched unfold over the last 90 days.
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