When the law is on your side, argue the law.
When the facts are on your side, argue the facts.
When neither the law nor the facts are on your side, call the other lawyer names.
I try not to address political topics in the heat of the moment, so forgive me for delivering old news. Earlier this month we added a new justice to the United States Supreme Court. The final days of the process were tense, angry and partisan — and give us good examples of two rhetorical techniques known as ad hominem attacks and changing the subject.
Justice Brett M. Kavanaugh replaces retired Justice Anthony M. Kennedy, for whom he clerked early in his career. Kennedy, who was considered a swing vote on many of the court’s 5-4 decisions in recent years, was nominated by conservative President Ronald Reagan in 1987 and unanimously approved by the Senate in 1988.
It’s tempting to say that those were the good old days of civility and “advice and consent” by the Senate, which at that time required a two-thirds majority to approve judicial nominees. The truth is that Kennedy was uncontroversial only in comparison to Reagan’s first nominee to replace the retiring moderate Justice Lewis Powell (also a swing vote) — conservative Judge Robert Bork.
In his legal philosophy, Bork was considered an originalist: He interpreted the Constitution to be applied as it was written without modern conclusions such as an implied right to privacy, a key element of the Roe v. Wade decision that applied abortion law nationwide instead of as one of the laws not enumerated in the Constitution and thus reserved to the states.
Democrats and others feared that this approach would lead the court to overturn Roe v. Wade, and thus opposed Bork on ideological grounds rather than his qualifications. Sen. Edward M. Kennedy, D- Massachusetts, delivered this famous speech within an hour after the nomination:
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, and schoolchildren 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.
Other senators, including Judiciary Committee Chairman Joe Biden, D-Delaware, opposed Bork on his legal philosophy, saying that originalism was at odds with modern interpretations that a right to privacy exists beyond the text of the Constitution.
The committee voted 9-5 against Bork, who was expected to withdraw his nomination before a full Senate vote. He didn’t, saying instead:
There should be a full debate and a final Senate decision. In deciding on this course, I harbor no illusions. But a crucial principle is at stake. That principle is the way we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees. For the sake of the Federal judiciary and the American people, that must not happen. The deliberative process must be restored.
Bork’s nomination was rejected in the full Senate, 58-42, but the attacks on the man rather than his qualifications have given us a new name for such ad-hominem attacks, especially in political appointments, that has lasted three decades: to Bork.