"Borking" is a political term that has entered our discourse in recent years thanks to the right wing. It refers, derisively, to the process of challenging any presidential nominee, but particularly a prospective Supreme Court justice, awaiting confirmation by the Senate and who is getting the treatment accorded Robert Bork—a controversial 1987 Supreme Court nominee shot down for radical judicial views. "Borking" means to successfully and, in the right's view, unfairly paint someone as an extremist—someone outside the pale.
As his confirmation hearings next Monday, Sept. 12, approach, liberal groups are doing their best to Bork John Roberts. And it's a complete waste of time. Make no mistake: Roberts will replace the late Chief Justice William Rehnquist. He has the votes of every Republican and quite a few Democrats, and he is skilled enough in the art of saying nothing untoward in Senate hearings that his appearance there will only cement his reputation as an affable, regular kinda guy. Roberts will sail through these hearings, and all those anti-Roberts TV ads that have clogged the D.C. airwaves will fall on deaf ears.
So why air them? Opponents of the Roberts nomination paint him as a wolf in sheep's clothing, a man whose lack of extensive written history masks a deeply conservative, even reactionary mind. To bolster this argument, they are dragging out old memos from 20 to 25 years ago, when Roberts was a young Reagan administration devotee. But he has repudiated much of this. On Roe v. Wade, for example, Roberts has said in a previous confirmation hearing that he considers that to be settled law. And yet ads are airing featuring the words of a young Roberts calling for its removal. Liberals who know Roberts say that he is a best-case scenario, someone who, given the proclivities of the Bush administration, is a straight arrow, as good (or at least as harmless) a nominee as we could hope for. Why, then, the attacks?
In part, they are purely reactionary. Roberts is being challenged because of who nominated him. Anyone, the theory goes, who is admired by George W. Bush must be dangerous. If he does not have much of a record to parse, all the more treacherous. And there's some truth to this. After all, Bush has repeatedly stated his admiration for strict constitutionalists, judges like Clarence Thomas who are a nightmare on the court.
Too, Democrats are playing to midterm elections in 2006. They see a weakened Bush who in many ways is out of step with mainstream America, and they want to use the Roberts confirmation process as an opportunity to define for voters what Democrats stand for—and what appointees like Roberts do not stand for.
But the confirmation process should not be about using the audience as a focus group for progressive ideas. It is about vetting a man who is getting a lifetime appointment to an extremely powerful position in government, with no real checks on that power once he is confirmed. Given that Roberts' confirmation is a near certainty, much of this posturing is not about the fitness of John Roberts at all. It is about weakening Bush and the Republicans and trying to establish Democrats as a party of popular, commonsense ideas.
But isn't that what Democrats should be doing all the time? Why drag Roberts through the mud as a marketing scheme? If the Dems cry wolf over Roberts, and Americans see during his hearings a sympathetic guy, there will be that much less credibility available when Bush nominates someone really bad to replace retiring Justice Sandra Day O'Connor, whose seat Roberts originally was to fill.
Some activists see the challenge to Roberts as a dry run for next time around, an attempt to soften up the Republican juggernaut so there's a better chance of stopping the now-imminent second nomination. But instead, the battering of a guy who may or may not merit it does nothing but cost Democrats and activist groups like MoveOn.org precious credibility. Given that Republicans control every branch of the federal government, Democrats wouldn't seem to have that much credibility to waste.
They should lay off John Roberts. It's not worth risking credibility for a hopeless fight. And given how unpredictable court nominations are, there's every chance Roberts will turn out to be a fine justice. Save the ammunition and angst for another day.