Apr 1 1999

Hit the Rewind

Bork's video subpoena was a story too good to check

The day after President Bill Clinton’s impeachment, George Stephanopoulos, surveying the rubble on ABC‘s This Week (12/20/98), made a bold confession: “As a Democrat, I will say the Democrats should rue the day when they made one simple act: the day they subpoenaed Robert Bork’s videos.”

Stephanopoulos was soon joined by others. Edward Rothstein, cultural critic at large for the New York Times, observed in the New Republic (1/25/99) that our national politics have long suffered from episodes of “impugning of character and morals, complete with probings about public virtues and private values.” Exhibit A: “Records of video rentals, for example, were subpoenaed in the hearings about Robert Bork’s nomination to the Supreme Court.”

On CNN‘s Inside Politics (2/16/99), a distinguished panel of talking heads was introduced by a background report on the noxious political climate from anchor Judy Woodruff, who recounted: “It is a familiar story of partisan politics turning personal. In 1987, the Democrats attacked President Reagan’s nomination of Robert Bork to the Supreme Court, going so far as to subpoena his video store rentals.”

The Kansas City Star (12/27/98) published a lengthy piece reviewing our era of “angry politics,” claiming that the Bork fight “upped the ante on invasion of privacy when Democrats sought records of Bork’s video-store rentals.” The piece was sent out over the Knight Ridder wire service and several papers across the country picked it up.

It sounds pretty toxic, doesn’t it? For Washington’s pundits, desperately grasping to retrofit some meaning onto a year of madness, the Bork video-rental story stood out as a seminal episode of the new ugliness that had swept over national politics. Commentators often suggested that the attack-dog style of 1998’s politics could be traced back to that nasty first stone cast by the Democrats 11 years earlier. But future historians who sift through the documents looking for the famous “Blockbuster Subpoena” will have a hard time finding it–because it never existed.

The infamous video rentals entered the public record not through a Democratic subpoena, but via an article in City Paper, a weekly newspaper in Washington D.C. (The New Republic admitted this in a correction to Rothstein’s essay: 2/22/99). Almost immediately, the paper was denounced by liberal groups and Democrats on the Judiciary Committee for invading Bork’s privacy.

The ACLU complained to the editor of City Paper, comparing the exposure to breaking and entering. People for the American Way, which led the fight against Bork’s confirmation, urged the District of Columbia to pass a law to make sure it wouldn’t happen again. “We believe the release of such information is a clear violation,” a People for the American Way lobbyist told the Chicago Tribune (11/20/87).

(Of course, it was easy for liberals to denounce the intrusion, since the “exposé” managed to reveal some decidedly non-scandalous movie rentals: A Day At the Races, Ruthless People and The Man Who Knew Too Much were among them.)

The Bork video subpoena has become a kind of journalistic urban legend–an easily checkable assertion that “everybody knows,” so no one bothers to check. But it is also part of the larger fiction that Robert Bork’s confirmation hearings were somehow an exercise in “personal destruction.” In fact, the fight over Bork’s nomination, noisy and voluble as it was, never departed from the issues of constitutional interpretation one would hope for in a debate about the Supreme Court.

In fact, a 1987 column (“The Scale and Intensity of the Anti-Bork Campaign,” Washington Post, 10/1/87) by conservative columnist George Will–who waged a veritable campaign in favor of Bork’s confirmation and against his critics–summarized the opposition to Bork this way: “Robert Bork’s opponents are of three sorts: those who say he is dangerous because he is an ‘inflexible ideologue’–those who say he is too changeable and those who… say both.” Not a word about “personal destruction” or any variation on the theme.

The fact is that Bork was rejected from the Supreme Court because many people thought his constitutional views were too extreme. Liberal groups waged a no-holds-barred media campaign–taking out television ads, mailing out fliers, and generally trying to drum up opposition to Bork’s confirmation–highlighting his narrow view of the First Amendment and his support for big business, among other things. None of these charges bore any resemblance to scandal-mongering.

But following Bork’s rejection, many in the media–even those who had opposed Bork’s confirmation–evidently came to feel uncomfortable with the participation of unruly outsiders in a confirmation process that had traditionally been confined to the fraternal terrain of the Senate (not to mention the D.C. press corps). Soon, the media began to conflate contentious politics with scandal politics.

Today, politicians in both parties are united in promoting a “crisis” of Social Security and Medicare, furthering the aims of those who want to cut back or dismantle those programs. The media have a history of defending such spurious consensuses in the name of “bipartisanship.” That’s why news consumers should be wary of the media’s renewed appeals for “wound-healing”–and the misuse of the Bork case for their cause.