History is not what is lived; it is what is remembered. As a character in Richard Russo’s Trajectory states, “Just because I wasn’t there doesn’t mean that I can’t remember it.” But even those who were there may not remember it the way that it was lived.

The O.J. Simpson murder trial is an example. Polls the day after the verdict found that the majority of Americans thought the not-guilty verdict was right. Although a higher percentage of blacks agreed with the outcome than whites, a majority of whites also said that guilt had not been proved. TV had shown gavel-to-gavel coverage of the trial with extensive summaries in the evening, and the proceedings had been heavily watched. The day-after opinions were largely based on what the poll respondents had personally observed of the trial.

A month later, however, polls showed a different reaction to the trial. Now a majority of whites thought that the verdict was wrong while a strong majority of blacks continued to see it as right. Memories of the trial had changed not because respondents had gained more experience of the trial. Instead, they heard others, often TV pundits discussing the case, people who often had had no more experience of the trial than the respondents. But for those who had changed their minds a month after the trial, history had changed. Memories were different from what they had experienced, and the memories were based not just on the events but also had incorporated how others portrayed the events. What was “true” had changed.

I am reminded of the comedian I saw who said that someone who remembers everything has a photographic memory, but then there are those who make up memories and believe that they are true.  They have a PhotoShopic memory. To some extent, we all have PhotoShopic memories.

These thoughts popped up because we are entering a season in which we may hear the term “borked.” Merriam-Webster defines this slang word: “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.” The Oxford English Dictionary says “bork” means “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 term comes from the nomination by President Ronald Reagan of Robert Bork to the United States Supreme Court in 1987. A superficial glance showed a nominee well credentialed for the Supreme Court. After graduating from an elite law school, Bork worked at a distinguished law firm and then joined the faculty of Yale Law School where he became a famous antitrust scholar. He served four years as Solicitor General of the United States, the office that represents the federal government before the Supreme Court. A few years later, Reagan appointed him a judge for the United States Court of Appeals where he was sitting when nominated for the Supreme Court.

This c.v. made him look superbly qualified for the high court, but the Senate still rejected his nomination by a vote of 42 in favor and 58 against. A conservative story then took root. Bork was well known for his conservative views about how the Constitution should be interpreted. Conservatives maintained that until the Bork nomination, presidential nominees, especially Supreme Court nominees, were rejected only for incompetence or corruption, and Bork easily met what had been the prevailing standard for approval up until then. Bork was rejected, conservatives maintained, not because he was unqualified, but because he was a conservative. It was party politics, they claimed, in an area that had previously been free of partisan politics, that prevented Bork from being confirmed. And it was ugly partisan politics. Conservatives claimed that the opposition campaign to Bork was filled with slanders, vilifications, and irrelevancies. Bork lost the nomination because he was “borked.”

Many accept this “history,” including friends of mine who recently said that the Democrats without precedent politicized the Supreme Court nomination process with Bork and that Bork was treated unfairly. Their implication is that Bork should have been confirmed. This made me wonder about my own “history” of that nomination. I remember that I was opposed to Bork’s elevation to the Supreme Court, and, not surprisingly, I thought that I had good reasons for that position. I also remembered that friends and mentors of mine who had been colleagues of Bork also opposed his nomination. Were these people whom I respected simply accepting calumnies or being anti-conservative partisans in thinking Bork was not fit for the Supreme Court? Was I?

To gain perspective I re-read Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America. I had read the book shortly after it was published in1989. It was updated in 2007, and it was this newer edition that I now read. Battle for Justice was what I remembered it to be—a well-researched, dispassionate account of the nomination fight. And I was confirmed in my memory. There were compelling reasons to oppose Robert Bork’s nomination to the Supreme Court. (What follows is largely drawn from, and sometimes paraphrases, Bronner’s book.)


(Continued on September 5)

RELATED POST: https://ameliasdad.blog/?s=originalism



Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s