Le·gal In·sur·rec·tion

Controversy is swirling around the appointment of Yale Law School Professor and Dean Harold Koh to the position of State Department Legal Advisor, essentially the top lawyer at State. Koh is being portrayed as willing to apply Sharia law in some circumstances, as is happening in Britain and some other European countries. This controversy itself has been criticized as twisting Koh's positions out of context for political purposes.

I'm not going to spend the time reading Koh's writings and listening to transcripts. I'll leave that to others. But I can accept that a sentence or two -- or a "nuanced" legal argument -- could be taken out of context and used for political purposes. It happens all the time, and the tactic was all but invented by the liberal Democrats who are backing Koh. It's called Borking.

For those of you who rely on memory not history, here's a short history of Borking. Robert Bork was a distinguished Judge for the federal Court of Appeals for the D.C Circuit, and previously had served as Solicitor General. Bork was best known as a conservative legal scholar of the highest caliber, who believed that the Constitution should be interpreted based on the intent of the framers (this is a simplification, but good enough for this post). Bork was nominated to the U.S. Supreme Court, a position for which he was supremely qualified.

But Bork's qualifications were not good enough for Senate Democrats because Bork was conservative, and Senate Democrats were looking for a fight with Ronald Reagan, who had nominated Bork. So the Senate Democrats, led by Ted Kennedy, decided to engage in character assassination by twisting Bork's writings out of context, engaging in hyperbole, and ultimately name-calling.

In a famous speech on the Senate floor within an hour of Bork's nomination, Kennedy said as follows:

"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is -- and is often the only -- protector of the individual rights that are the heart of our democracy..."

And that was just the beginning. The Senate hearings, with Joe Biden in full verbal regalia as Chair of the Judiciary Committee, reached such a low point that the verb "to Bork" was created as a description of what happens when nominees are destroyed not for what they said or did, but for political purposes:

Kennedy’s assault rallied left-wing interest groups to the anti-Bork banner for an unprecedented assault on a man the late Supreme Court Chief Justice Warren Burger dubbed the most qualified nominee he’d seen in his professional lifetime. As Gary McDowell noted recently in the Wall Street Journal, that time span included the careers of Benjamin Cardozo, Hugo Black, and Felix Frankfurter.

Then-Judiciary Committee chairman Joseph Biden, Kennedy’s lieutenant in the assault, told the Philadelphia Inquirer not long before Bork was nominated: “Say the administration sends up Bork. I’d have to vote for him, and if the (liberal interest) groups tear me apart, that’s the medicine I’ll have to take.” But when it came time to take his medicine, he ran away like a Kennedy fleeing a car accident. The fact that Biden was about to run for president — for the first time — probably helped him rationalize his flight from honor.

By today’s standards, the slimy insinuations that Bork was a racist seem almost quaint. The investigations of his private life — Senate staffers pored over his video rental records in hope of finding something prurient — pale to the deepwater dredging of private lives today.

And so gave birth to the judicial politics of personal destruction, which rears its ugly head from time to time not only for judicial appointments, but also appointments to legal positions. These politics now extend long after a nominee is appointed and has concluded service, as evidenced by the attempts by some on the American Left to find European judges to fight American political battles over legal opinions rendered in the war on terror.

So the treatment being accorded Harold Koh is nothing new. Whether he is being Borked, or fairly criticised, will be known in due course. But the liberal Democrats who now control the Senate, and the liberal Democrats who control the Executive Branch, have no ground to complain about the process. They invented it.

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UPDATE: I told myself I wouldn't get too deeply into this, but I found this post about Koh's opposition to the nomination of Alberto Gonzales for Attorney General. Did Koh Bork Gonzales?

UPDATE No. 2: The Weekly Standard has a good critique of the author of the Slate article (linked in my post) which kicked off this discussion, making a point similar to my post. Some of the people standing up for Koh engage in the same Borking tactics of which they are complaining:

That's pretty rich, coming from Lithwick. For years, she's never hesitated to slur those with whom she disagrees. It took me less than 10 minutes to pull up some of these gems:

• Lithwick on Chief Justice Roberts, in 2005: "[Roberts] seemingly finds arresting them for French-fry possession to be a cornerstone in good parent-child relations."
• Lithwick on Justice Thomas, in 2008: "Thomas thinks that anyone who opposes him is a racist."
• Lithwick on Senator Cornyn, two weeks ago: "Whether Cornyn's comments reflect blatant sexism on his part or some messianic new standard for legal seriousness I leave to you to decide."

There's no question that Obama's nominees should be evaluated on the substance of their record. But Lithwick's just about the last person who can credibly complain about "recharacterizing" the statements of others. Perhaps Lithwick would have been more effective if she had just asked Republicans, "please don't be another Lithwick."

UPDATE No. 2: Conservative Republican legal heavyweight Ted Olson apparently has come out in defense of Koh's integrity. This is admirable on Olson's part, since Olson himself has been the victim of Borking tactics.

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