Court Documentary Traces The Legacy Of 'Borking' As it exists now, the process for confirming Supreme Court nominees arguably began in 1987 with the nomination of Robert Bork. The ideological clashes that led to Bork's rejection set the stage for the current model, often referred to as "Borking," where conservatives and liberals regularly mobilize opposing teams to attack or champion a given nominee. Host Rebecca Roberts speaks to filmmaker David Van Taylor about his new film, Advise and Dissent, which chronicles the confirmation of John Roberts, Samuel Alito and the failed confirmation of Harriet Miers.
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Court Documentary Traces The Legacy Of 'Borking'

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Court Documentary Traces The Legacy Of 'Borking'

Court Documentary Traces The Legacy Of 'Borking'

Court Documentary Traces The Legacy Of 'Borking'

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As it exists now, the process for confirming Supreme Court nominees arguably began in 1987 with the nomination of Robert Bork. The ideological clashes that led to Bork's rejection set the stage for the current model, often referred to as "Borking," where conservatives and liberals regularly mobilize opposing teams to attack or champion a given nominee. Host Rebecca Roberts speaks to filmmaker David Van Taylor about his new film, Advise and Dissent, which chronicles the confirmation of John Roberts, Samuel Alito and the failed confirmation of Harriet Miers.

REBECCA ROBERTS, Host:

That's the premise of the documentary, "Advise and Dissent," directed by David Van Taylor. The film covers the seven-month period in 2005, 2006 that included the nominations of John Roberts, Harriet Miers and Samuel Alito. David Van Taylor joins me now from our New York bureau. Welcome to the program.

M: Nice to be here.

ROBERTS: Looking ahead to Elena Kagan's confirmation hearings, what do you expect?

M: John Roberts had been on the bench only a very brief time before he was nominated to the Supreme Court. Elena Kagan, of course, has no record as a judge at all. And as an academic, though she's quite distinguished, has actually written relatively little. So, I fear that that's the model that we're in for.

ROBERTS: And the so-called vanilla process, the Sotomayor-John Roberts, potentially Elena Kagan model, contrasts with, say, Justice Alito, who did have opinions on record and was confirmed anyway.

M: Yes. Alito really had too much of a track record to run from entirely. And at the end of the film - I don't want to give anything away - but that same conservative activist essentially crows after Alito's victory that the curse of Bork has been blown out of the water. That, at least for conservatives and Republicans, it now seems possible to get somebody confirmed to the Supreme Court who has an openly conservative view of the law.

ROBERTS: Well, of course, in the 2005, 2006 window, you've got Democratic Senator Pat Leahy and Republican Senator Arlen Specter on the Judiciary Committee and they're sort of respectful opponents. Arlen Specter's now a Democrat and he is fighting to win the Democratic Party primary this Tuesday. How does that change things?

M: I would say that Senator Specter and Senator Leahy had more than a respectful relationship. I think they had a, you know, mutually admiring relationship and a close one. And, unfortunately, what happens in the film, you see how very, very difficult and perhaps impossible that kind of bipartisan across-the-aisle relationship has become.

ROBERTS: There's a moment in the film after the Judiciary Committee vote on Samuel Alito, which was along party lines, when Senator Specter reacts to that fact.

ROBERTS: I think that in the selection of a Supreme Court justice, it is not a healthy thing for the country to have the selection made along a party line. It carries with it the overwhelming suggestion that it's a political decision, and I think that is not good for America.

M: Well, of course, the terrible irony of that reaction from Senator Specter is that if you were going to look for someone who was most likely not to vote along party lines, it would've been Senator Specter himself. So, when he decries the fact that it was a party line vote, it's really, you know, a cry from the heart, I think, on his part, saying, I wish that I could've done something different but I didn't feel I could.

ROBERTS: So, do you think the process, as it is in the post-Bork era, where presidents choose somewhat safe, confirmable nominees, the nominee says next to nothing and, you know, has as little a paper trail as is possible for a professional and outside interest groups, you know, hit the phone banks immediately upon finding out who the nominee is, do you think that's the process for the foreseeable future? I mean, what would change it?

M: You know, Elena Kagan actually wrote in 1995 probably the most impassioned and reasoned argument that I've read for openness in judicial confirmations. Unfortunately, I recently read that she has openly disavowed that position now. And when asked, she said, well, my perspective has changed on that.

ROBERTS: David Van Taylor, his documentary is called "Advise and Dissent: Where the Supreme Court and Politics Collide." Thank you so much.

M: Thank you.

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