Edward Kennedy

The death of a public figure, especially a polarizing one, always makes things a bit dicey in opinionland. Do the detractors speak ill of the dead? Do the defenders pre-empt such criticisms, or does that just inspire the critics? In the case of Ted Kennedy, whose many accomplishments got due recognition everywhere, most chose to duck the fight on anything more problematic. There was comparatively little talk about a Harvard scandal, a very sad end to a first marriage or a controversial rape trial. Even among the pundits and partisans, the name Mary Jo Kopechne was for the most part mentioned only in passing; those on the right who tried to make much of it seemed more petulant than aggrieved — perhaps even shrill — while those on the left who tried to make the best of it sounded patently absurd.

Can today’s political acrimony be traced back to a 1987 speech before the Senate Judiciary Committee?

No, when it came to Ted Kennedy’s less-than-admirable qualities, most accounts ran along the lines of this, from the obituary in the Times: “He was a celebrity, sometimes a self-parody, a hearty friend, an implacable foe, a man of large faith and large flaws, a melancholy character who persevered, drank deeply and sang loudly.” What “large flaws”? Well, you know …

But if this isn’t the occasion to dwell on the senator’s personal shortcomings, it should be one to examine his words. And in terms of both dramatic and lasting effect, nothing in his 46-year tenure in the Senate comes close to this:

In case you missed any nuance, here is the transcript including a bit more of the speech:

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, 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 for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy… President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

First, a fact-check, courtesy of my Times colleague Ethan Bronner, who covered the hearings for The Boston Globe.

Kennedy’s was an altogether startling statement. He had shamelessly twisted Bork’s world view — “rogue police could break down citizens’ doors in midnight raids” was an Orwellian reference to Bork’s criticism of the exclusionary rule, through which judges exclude illegally obtained evidence, and Bork had never suggested he opposed the teaching of evolution…

Not good, but surely not the first time a senator stood before his colleagues and decided that the ends justified the means.

More troubling to Bronner, and to many other Americans any time a seat opens on the Supreme Court bench, was the precedent being set.

The speech was a landmark for judicial nominations. Kennedy was saying that no longer should the Senate content itself with examining a nominee’s personal integrity and legal qualifications…. From now on the Senate and the nation should examine a nominee’s vision for society … the upper house should take politics and ideology fully into account.

Kennedy did distort Bork’s record, but his statement was not the act of a desperate man. This was a confident and seasoned politician, who knew how to combine passion and pragmatism in the Senate. Unlike the vast majority of those who were to oppose Bork, Kennedy believed from the beginning that the nomination would be defeated and that the loss would prove decisive in judicial politics.

The New Yorker’s Jeffrey Toobin, for one, thinks it was a precedent well worth setting. “It was crude and exaggerated, but it galvanized the opposition as nothing else, and no one else, could,” he writes. “Four months later, Bork was defeated by a vote of fifty-eight to forty-two, and Reagan nominated Anthony M. Kennedy in his place. Justice Kennedy has been no liberal, to be sure, but he has been the single vote that kept Roe v. Wade on the books, was the first Justice to recognize the rights of gay people, and imposed a restraining hand on President Bush’s excesses when it came to the treatment of detainees. For that, and for his presence on the Court, the nation can look to Ted Kennedy.”

And A. Serwer at The American Prospect seems to think that some claims become truer over time:

In hindsight though, Kennedy’s statement wasn’t so much wrong as it was expressed in the kind of intemperate manner that ruffles feathers in Washington. The fact is, Bork believed only “political” speech was protected by the First Amendment; he, like many other conservatives, didn’t believe that women have the right to make choices about whether to carry pregnancies to term; he was critical of the idea that illegally obtained evidence shouldn’t be used in court; and while nominally agreeing that the 14th Amendment prohibited racial discrimination — as opposed to discrimination based on gender, which he thought it didn’t — in practice, he opposed every single piece of legislation ever passed in order to guarantee the civil rights of African Americans. Searching through old news reports, I can’t speak to Kennedy’s allegations on Bork’s views on evolution in schools, but it’s fairly clear that Bork’s personal beliefs are anti-evolution.

Tristero at Hullaballoo knows that it can be proved that Kennedy relied totally on the facts, if only somebody else would actually go and find them.

By speaking this forcefully, and - equally important - reacting so quickly to Reagan’s awful appointment, Kennedy helped prevent Bork’s for elevation to the highest court in the land, for which this country owes the Senator its gratitude.

I have no doubt that Kennedy was 100% right about Bork. However, without backup, Kennedy seems over the top, beyond the pale, shrill, unstatesmanlike, etc. While [Serwer's post] tried, its links barely support Kennedy’s assertions. And as of this writing, no one in the Democratic party and no progressive organization has thought to compile easily accessible and truly comprehensive support for Kennedy’s charges.

No wonder we lose so often. No wonder we can’t make use of our victories.

One who has no use for Tristero’s victories is Doctor Zero at Hot Air. “Politicians have been spreading scurrilous lies about their opponents since the early days of the republic, but Kennedy used scurrilous lies to destroy a man who wasn’t a politician: Judge Robert Bork,” writes the Doctor,

Thus began the modern era of below-the-belt, win-at-any-cost politics, played for the highest of stakes…. Kennedy was a prince in the Aristocracy of Intent, absolved of every crime by the soaring nobility of his intentions. His constituents were delighted to watch him emerge from a warm bath of incredible wealth, to rail against men who were crass and selfish enough to accumulate their fortunes by creating jobs and meeting consumer needs… Kennedy is praised for his “passion” by the same people who recoil in horror from the passion of town-hall protesters and pro-life advocates. Awarding political power, and respect, on the basis of “passion” is another road to totalitarianism.

I’m not sure that Scott Johnson of Powerline thinks despotism is around the corner, but he agrees that, in some ways, the Bork debate has never really ended.

The tone set by Senator Kennedy in connection with the Bork nomination lives on in the Senate. It also lives on in the mainstream media — see, for example, John Hinderaker’s “A conspiracy so lunatic” — and on the left-wing side of the Internet. Indeed, we have seen it on display this month in the White House/Reid/Pelosi attack on the opponents of Obamacare.

We live in Edward Kennedy’s America not only in the consequential legislation that he sponsored and saw through the Senate, but also in the afterlife of the vulgar political sham on which Senator Kennedy relied to defeat the nomination of Judge Bork.

For Pejman Yousefzadeh of the New Ledger, Kennedy’s speech “was not only nonsense, it was nonsense-on-stilts.”

To be sure, there was a tactical advantage to the inflammatory rhetoric; it shocked the Reagan Administration and helped rally liberals to work against the Bork nomination with a sense of mission, urgency, and organization not often found on the liberal side. But Kennedy’s statements were patently untrue, and what’s more, the Senator had to know that they were untrue. It is nice and good that Kennedy was able to restore a sense of decorum and gentlemanly behavior when it came to a whole host of other legislative battles, but when it came to the Bork nomination, his sense of propriety, decorum, and fair play were sorely lacking. Those who wonder how American political debate became so coarse, so unrefined, and so demagogic, ought to look at Kennedy’s speech on Bork as a catalyst for the national descent into a prolonged political shouting match.

And in the eyes of the editors at National Review, the most infamous aspect of the Bork speech is less the personal attack than how it encapsulated a shift the senator had made on another issue entirely:

Senator Kennedy was famed for the power of his oratory. Another way of saying that is to note that he was a gifted artist whose medium was slander, and he found his canvases in Supreme Court nominees Robert Bork and Clarence Thomas. Powerful a speaker as he was, it is not clear that Senator Kennedy’s rhetoric was powerful enough to sway the hardest hearts, including his own. Consider this: “Wanted or unwanted, I believe that human life, even at its earliest stages, has certain right which must be recognized the right to be born, the right to love, the right to grow old.” A beautiful sentiment, beautifully expressed and callously ignored when the political winds changed and he felt himself compelled to denounce the “back-alley abortions” that would be necessitated in “Robert Bork’s America.” Like many of the most powerful Democrats — Jesse Jackson and Al Gore come to mind — Senator Kennedy left behind his pro-life convictions when they became a political burden. This is an especially painful failing in Kennedy, whose family has traded on its Catholicism so profitably.

So, you’ve watched the senator at work and read his words: Was it slander or did it achieve a higher sort of truthiness? Did it spare the nation a grave mistake on the bench or was it responsible for two decades of partisan rancor?

Few, it seems, are willing to split the difference on such questions. Somewhat surprisingly, the person who made the strongest effort at it was David Frum, the Bush speechwriter of “axis-of-evil” fame who now runs the site New Majority.

I know exactly the hour when my opinion of Sen. Ted Kennedy permanently changed. I had remained very angry at the Massachusetts liberal for many years since his 1987 speech so unjustly vilifying the great conservative jurist Robert Bork …

For 15 years thereafter I could hardly bear to hear his name spoken. Nor was my temper much improved by his rough handling of another great conservative legalist, Theodore Olson, at Olson’s confirmation hearings as solicitor general. I was always ready to laugh at the harsh jokes conservatives told about the senator’s legendarily self-indulgent personal laugh. It seemed a fair judgment on an unfair man.

Then came 9/11. Among the murdered was the brave and brilliant Barbara Olson. Ted asked some friends to help with the deluge of messages of condolence, and my wife Danielle volunteered for the job. Among the letters: a lengthy handwritten note by the senator so elegant and decent, so eloquent and (fascinatingly) written in so beautiful a hand as to revolutionize one’s opinion of the man who wrote it. It did not dishonor by ignoring or denying the political differences between the two families. It fully acknowledged them - and through them expressed a deeper human awareness of shared mortality, pain, and grief. Not all chapters of his life revealed it equally, but the senator was a big soul, and in his last years, he lived his bigness fully … Rest in peace, leader of the liberals.

And that, I think, is a pretty good place to end.