Others have offered appreciations and evaluations of his stellar yet controversial career. I myself have written many times about the stormy 1987 Senate hearings on his failed nomination to the Supreme Court, and the egregiousness of much of the opposition. Whatever one thinks of Bork’s views -- I disagreed with them, often -- his writing betrayed true craft. Thus an appropriate tribute might be an appreciation not of the judge or the scholar, but of the verb that he quite unwillingly bequeathed to the language.
“To bork” has become firmly embedded in our political vocabulary. How firmly? So firmly that nobody has to ask what it means. But if you do, the transitive verb “bork” (lowercase) is right there in the Oxford English Dictionary: “To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”
The Dictionary of American Slang offers a subtly different definition: “To mount an intense campaign against a political appointee.” Unlike the OED, it avoids any intimation that the campaign in question must be aimed at vilification to qualify. History shows that the OED has the better of the lexicographic dispute.
The OED refers to the word “bork” as “U.S. political slang” derived from his confirmation hearings. The proceedings swiftly veered off course from discussion of judicial philosophy to personal attacks on the nominee. We had been through that sort of thing before. Thurgood Marshall, 20 years earlier, had it every bit as bad, if not worse, but his hearings weren’t televised. Bork’s were -- and if we’d had our wits about us, we might have stopped the practice then and there.
Actually the nastiness of the hearings shouldn’t have come as a surprise. Modern confirmation hearings were invented to be nasty. They didn’t begin until the Supreme Court struck down school segregation in 1954. After that, the Southern Democrats who ran the Senate demanded that all future nominees come before the Judiciary Committee to answer questions about their views. The questioning was often ugly. Liberals of the day took the view (correctly, I think) that asking potential justices about their likely votes violated the constitutional separation of powers.
Still, it wasn’t Bork’s defeat that led to the creation of the new verb. Goodness knows, Supreme Court nominees of both parties had been rejected before. Since World War II, almost a quarter have gone down to defeat or been withdrawn. What was different was the manner of the attacks.
Television led to grandstanding, both by many of the senators on both sides, and by activists who filled the screen with invective. Focus groups were used to aid opponents in crafting a message for advertisements and talk shows. The result was predictable. The hearings made wonderful theater, but poor deliberation. There might have been good reasons to vote against the nomination, but it was difficult to discern them beneath all the silliness. Thus was “borking” born.
It has been an equal-opportunity verb. In an analysis a few years ago, the liberal watchdog group Media Matters, unsurprisingly but also unconvincingly, offered a more partisan etymology: “‘Borking’ is a conservative term popularized in the late 1980s by the right-wing Wall Street Journal editorial page in defense of defeated Supreme Court nominee Robert Bork. Since then, conservatives have pushed the term into the lexicon whenever a conservative nominee comes under unwelcome scrutiny.”
This bizarre understanding of the word would come as a surprise to commentators such as Andrew Sullivan, who in 2010 referred to controversy over Elena Kagan, President Barack Obama’s second Supreme Court nominee, as “the borking of Kagan.” The Media Matters approach presupposes that anyone who was upset about the way Bork was treated must agree with his views. This is simplistic nonsense. Laurence Tribe, a Harvard law professor and one of Bork’s principal antagonists at the hearings, later described efforts by many in the opposition as “attempts to stir up fear about him as a person, which I tried not to do and regret that others did.”
Stirring up fear is the point of borking. It personalizes policy. The nominee is not merely wrong but dangerous; not merely mistaken but evil. Conservatives still complain about the borking of their nominees, even of prospective nominees. So do liberals. The unfortunate result is a long trail of nominees who, as Jeffrey Rosen points out, “seem to have measured every word since law school in an eerily prescient effort to avoid being Borked.”
Who first used “bork” as a verb? Writing more than a decade ago in the New York Times, legendary wordsmith William Safire traced the earliest use to an article in the Atlanta Journal-Constitution in August 1987 that referred to “borked” as “synonymous with ‘maligned.’” Since the article was published before the hearings began, it’s unlikely that an earlier citation will turn up. (It’s worth noting, however, that a column in the Chicago Tribune a month later reported that exhausted journalists adopted “the verb ‘to Bork,’ which is used to describe one’s tenure on the Bork story, as in ‘I’ve been Borking for two weeks.’” That usage didn’t last; or, as the OED would say, is now obs.)
Bork was a brilliant scholar, a successful teacher and a man of impeccable manners. He wouldn’t have wanted his legacy to be a controversial verb. On the other hand, Bork himself in interviews later endorsed the usage. Perhaps he realized that he was stuck by then with his biography. The OED drolly notes that Bork was “a judge whose nomination to the U.S. Supreme Court in 1987 was rejected following a large amount of unfavourable publicity for his allegedly illiberal and extreme views.”
“Unfavorable publicity” -- or “unfavourable” as our British cousins would have it -- is the principal point. The idea of borking is to stir up public opposition. And we’re likely to see a lot of it over the next four years if, as seems likely, Obama has the opportunity during his second term to appoint one or two additional justices to the Supreme Court. Given that Obama already made two appointments during his first term, it can fairly be said that his choices will shape the interpretation of the Constitution for decades to come.
It has been 40 years since any president has had the opportunity to name four new justices to the Supreme Court. Will conservative activists sit back and allow Obama’s nominees to waltz home? Of course not. The borking will begin again, in earnest because, in the end, everybody does it. Public vilification isn’t really the best way to run democratic debate. But we’ll keep doing it because the sad lesson of the past quarter-century is that it works.
(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama,” and the novel “The Impeachment of Abraham Lincoln.” The opinions expressed are his own.)
To contact the writer of this article: Stephen L. Carter at firstname.lastname@example.org or @StepCarter on Twitter.
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