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Some afternoon observations on Miers and “Borking.”

Wednesday, October 12, 2005  |  posted by Hugh Hewitt
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The verb “to Bork” has an origin in the 1987 treatment of Robert Bork by his opponents on the left. It was a dishonorable episode in American political history. From Wikipedia:

According to the New York Times, the verb to bork might be defined as “to destroy a judicial nominee through a concerted attack on his character, background and philosophy.” [1]

The most famous (or infamous) use of the verb to bork occurred in July 1991 at a conference of the National Organization for Women in New York City. Noted feminist Florence Kennedy addressed the conference on the importance of defeating the nomination of Clarence Thomas to the U.S. Supreme Court. She said, “We’re going to bork him.” [2] Thomas was subsequently confirmed after one of the nastiest confirmation fights in Supreme Court history.

Some conservatives involved on the attack on Miers -especially the anonymous Judiciary Committee staffers quoted in this morning’s papers and the anonymous leakers to reporters like John Fund and pundits like David Frum– are embracing the tools of Borkery, first forged on the left. Once used, it will be impossible for conservatives generally to denounce their subsequent use by the left in attacking preferred nominees.

Example: On my program, liberal law professor Erwin Chemerinsky has repeatedly asserted that Fourth Circuit Judge Michael Luttig, a jurist at the top of my and many lists for a future opening on SCOTUS, has “temperment issues.” This is a laughable assertion, and I always denounce Erwin’s attempt to make this charge stick because there is no one with whom Judge Luttig works who has ever said such a thing on the record. When next I object to such a comment, I fully expect Erwin to reply that ananoymous sources were good enough for conservatives in the Miers battle.

I also have to note that the demand for a paper trail proving Miers’ acceptability on matters of judicial philosophy –a demand most vocally and repeatedly made by Mark Levin, as recently as yesterday on this show– opens the door to demands by Democrats for contrary assurances. If the Democrats retreat to filibuster over future nominees, and the debate over the constitutional option unfolds before a national audience, be prepared to hear thrown back at opponents of the filibuster the Democrats charge that the GOP wants to manipulate the confirmation process so it gets the answers it must have but that Democrats may not have the answers they demand.

Finally, my friend John Podhoretz takes my warning about the debate over Miers having an effect on Evangelicals of “pushing some of a crucial demographic towards the sidelines,” and converts it into what he says is my “presumption, therefore, that the defeat or withdrawal of her nomination will cause millions upon millions of Evangelicals to stay home more than a year from now in a snit over the loss of their ‘identity politics’ candidate.”

Look. Some elections are very close. Some, like the 2000 Senate contests in Washington State and Missouri, or the 2002 contest in South Dakota are decided by handfuls of votes. It doesn’t have to be an epic departure of an entire cosntituency to cripple crucial races. Playing with fire over nominees –and especially attacking those who at least deserve the benefit of the doubt and at best deserve a strong and determined defense– is terrible politics.

The response will be that “the base” cares about judges –of course they do. They cared enough about Bush’s nominees to get very active in 2002 and 2004 on that issue. Now the critics are saying Bush has lost his way and is losing the issue. These critics aren’t just refusing to dance with the one that brought them, they are denouncing the idea of even having traveled to the ball in his car.

Be sure to read the transcripts of my interviews with Erwin Chemerinsky and Katherine Jean Loez from today’s show when they are posted at Radioblogger.com.

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