The term "borking" originated during the Federal Judicial confirmation hearings for the nomination of Robert Bork to the Supreme Court in 1987. Largely opposed by the democrats, Bork’s nomination from Republican president Ronald Regan was rejected based on accusations of being a right-wing extremist racist and sexist and posed a threat of such opinions entering the courts. “Borking” has come to be known as a fierce campaign against nominees to reveal backgrounds that are often distorted or exaggerated in order to keep them off judicial seats.
The question remains whether “borking” and judging someone on their personal views is acceptable despite the fact that judicial power is assumed to be above “politics.” The arguments for and against borking ride on a thin line of opposition. Many of them interconnect and are uncertain.
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When voting for a nominee for federal judicial positions, the Senate must base their decision on the philosophy the candidate holds towards the court’s role in upholding the constitution regarding issues. However, though, senators often believe nominee’s personal views towards issues will affect the way in which they will preside over federal judicial issues. Therefore, the Judiciary Committee should interrogate and examine a candidate’s personal views closely. At the same time, judges are expected not to allow their personal opinions and politics enter into court cases or to influence their enforcing of the constitution. Most sitting justices do not involve personal views in the courts and hold the law to a higher position. Those in favor borking argue that the senators are voting on the projected judicial actions of future justices and knowing the standpoints of the nominees allows them to pre-establish the manner in which they decide certain issues. This, although a valid concern, does not in any way guarantee they will bring their personal views to the bench and take them into account when interpreting the constitution.
Often senators ignore nominee’s obvious attributes, which qualify them to sit on the judicial boards. Education, background, and experience are given minor consideration in favor of focusing unfairly on academic papers that reveal personal opinions. In the case of Luni Guinier, her personal attitudes towards affirmative action and women, led her to be labeled as a “dangerous radical” and “extreme liberal.”
Conservatives based their charges on opinions written in academic journal articles and papers early in her career. Nominated by Bill Clinton for the Assistant Attorney General for Civil Rights in1993, Guinier lost the confirmation to the position. IN cases such as Guinier’s, The Judiciary Committee attacks nominees personally in order to lose the nomination when a candidate may be in slightest bit controversial or unconventional. However, being out of the mainstream of thought does not constitute an unqualified nominee. Rather, such a candidate could bring a broader perspective to the courts.
Nominees try to appear neutral regarding issues the Judicial Committee hurls at them, hoping that the inoffensive answers will please everyone. This works for and against borking. When candidates answer questions neutrally, the committee sometimes will not want to confirm a nominee that has not been candid with their opinions and therefore the committee cannot gauge how the candidate will think towards future critical matters. At the same time, nominees keep answers vague in order to keep the committee from attacking them. However, knowing a nominee’s explicit it personal opinions also helps predict how they will review judicial matters in the future, whether it be the candidate is overly conservative or liberal. At the same time, such probing is seen as unfair in judging a nominee’s ability to interpret the constitution and one having little to do with the other. Inevitably, the majority of senators confirm nominees within their own party lines. Often when the democrats have the House, and a Republican President nominates a justice, odds are that the democrats will not confirm the candidate.
Ultimately, borking destroys prominent academic reputations through distorting candidates’ prior records while exaggerated opinions on issues that are conveniently current such as abortion. Often the allegations against them are unproven accusations that nonetheless tarnish the character and professional name of the nominee. Numerous candidates for federal judicial positions have been victims of borking, however not in all cases have the nominees been unconfirmed because of the intense probing into their backgrounds. Robert Bork was not appointed to a seat on the Supreme Court, although Michael McConnell, considered an “extreme conservative,” was nominated by President George Bush and approved by Congress on September 18, 2002 to the Court of Appeals. Luni Guinier was rejected from the position of Assistant Attorney General by Congress on the basis of “extreme liberalism,” while Clarence Thomas was nominated by George W. Bush and approved by Congress to the Supreme Court in 1991, despite allegations of sexual harassment during his confirmation hearings.
In general, ‘borking” carries a negative overtone that should not find its place within the courts. However, there are those that argue that the courts are corrupted with politics as much as any other form of business and it is impossible to distinguish one’s personal views while attempting to uphold what is “constitutional.” “Borking” allows many a qualified and competent candidates for federal judicial position shamefully slip away, but it also can reveal valid and pertinent information, which is useful in voting on the confirmation of a future justice and predicting their projected actions.
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