Borking to Gomorrah

The wit and wisdom of Robert Bork.

Radical individualism is the handmaiden of collective tyranny.

Via.

Un-Borked

Nice to see this in The Paper of Record:

For much of the nation’s history, the Senate took seriously its role to provide “advice and consent” in the judicial nomination process. Nominees were frequently turned down, for reasons including partisanship and ideology. In 1795 the Senate rejected George Washington’s nominee for chief justice, John Rutledge, largely because of his view on the 1794 peace treaty with Britain.

Only at the start of the 20th century, as executive-branch authority expanded under Theodore Roosevelt and Woodrow Wilson, did timidity overcome the Senate. Breaking with historical norms, senators between 1894 and 1968 rejected only one high court nominee. These were the years when the president was regarded, as the political scientist Clinton Rossiter wrote in 1956, as a “magnificent lion who can roam widely and do great deeds so long as he does not try to break loose.”

That changed again amid the turmoil of the 1960s, as conservatives began to resist the court’s activism under Chief Justice Earl Warren. The court handed down transformational rulings on, among other issues, civil rights, religious freedom, freedom of speech and the rights of the accused. At a certain point, Republicans and Southern Democrats found it too much to bear.

When Lyndon B. Johnson named Solicitor General Thurgood Marshall to be the first African-American justice in 1967, right-wing senators of both parties tried to block him. The reason wasn’t just Marshall’s race; it was the way his critics expected him to vote on key issues.

Marshall’s detractors pretended to oppose him as unqualified — a case of “Borking” avant la lettre. This was laughable: Marshall was one of the century’s most accomplished constitutional litigators, having won groundbreaking civil-rights cases before the high court. 

 And, just a reminder, Bork's legal views were always wrong.

It's Ted Kennedy's fault

As John Cole points out, Joe Nocero (following his epic performance in snarking those who think fracking may not be a great thing for the environment), has officially become a villager in good standing.

The rejection of a Supreme Court nominee is unusual but not unheard of (see Clement Haynsworth Jr.). But rarely has a failed nominee had the pedigree — and intellectual firepower — of Bork. He had been a law professor at Yale, the solicitor general of the United States and, at the time Ronald Reagan tapped him for the court, a federal appeals court judge.

Moreover, Bork was a legal intellectual, a proponent of original intent and judicial restraint. The task of the judge, he once wrote, is “to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know.” He said that Roe v. Wade, which legalized abortion, was a “wholly unjustifiable judicial usurpation” of authority that belonged to the states, that the court’s recent rulings on affirmative action were problematic and that the First Amendment didn’t apply to pornography.

Whatever you think of these views, they cannot be fairly characterized as extreme; Ruth Bader Ginsburg, among many others, has questioned the rationale offered by the court to justify Roe v. Wade. Nor was Bork himself an extremist. He was a strongly opinionated, somewhat pugnacious, deeply conservative judge. (At 84 today, he hasn’t mellowed much either, to judge from an interview he recently gave Newsweek.)

I bring up Bork not only because Sunday is a convenient anniversary. His nomination battle is also a reminder that our poisoned politics is not just about Republicans behaving badly, as many Democrats and their liberal allies have convinced themselves. Democrats can be — and have been — every bit as obstructionist, mean-spirited and unfair.

I’ll take it one step further. The Bork fight, in some ways, was the beginning of the end of civil discourse in politics. For years afterward, conservatives seethed at the “systematic demonization” of Bork, recalls Clint Bolick, a longtime conservative legal activist. The Atlanta Journal-Constitution coined the angry verb “to bork,” which meant to destroy a nominee by whatever means necessary. When Republicans borked the Democratic House Speaker Jim Wright less than two years later, there wasn’t a trace of remorse, not after what the Democrats had done to Bork. The anger between Democrats and Republicans, the unwillingness to work together, the profound mistrust — the line from Bork to today’s ugly politics is a straight one.

[...]

The character assassination began the day Bork was nominated, when Ted Kennedy gave a fiery speech describing “Robert Bork’s America” as a place “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters,” and so on. It continued until the day the nomination was voted down; one ad, for instance, claimed, absurdly, that Bork wanted to give “women workers the choice between sterilization and their job.”

Never mind that character assassination has been a convenient staple of Republican tactics for seven decades, Kennedy's speech was based on Bork's own history and writings.

This argument would seem to turn on how to interpret the phrase “Robert Bork’s America.” Nieporent seems to think that it means, in at least some cases, “actions that Bork would personally perform or implement.” I interpret it as “the consequences that would flow from Robert Bork being the median vote on the Supreme Court.” The first reading is transparently wrong, and we know this because of the obscure fact that Kennedy’s speech was delivered on the occasion of Robert Bork being nominated to the Supreme Court.

Once we understand this, everything Kennedy said is fair and based on Bork’s public writings and/or jurisprudence. Bork did argue (and not in obscurity: he helped to persuade the 1964 Republican presidential candidate to adopt this position) that the Civil Rights Act of 1964 was both unconstitutional and bad public policy (and, indeed, was based on a principle of “unsurpassed ugliness.”) He clearly favored the overruling of Roe v. Wade (and, as he revealed in a subsequent book, the criminalization of abortion as a policy matter), and it’s uncontroversial that under a criminalization regime many women who lack the connections to obtain safe gray market abortions will be compelled to obtain unsafe black market abortions. He explicitly advocated an extremely narrow conception of First Amendment rights limited to certain kinds of political speech. He advocated a narrow reading of Fourth Amendment rights and disdained any right to privacy altogether. And — like most contemporary conservatives — he believed that (at least for litigants he disfavored) the rules of standing should be made more stringent.

Kenendy’s speech was tough and uncharitable, but every claim in it was based on Bork’s public writings.

Indeed, if it all "started with Bork," it started when Reagan nominated him.

"Empathy?" We don't need to steenking empathy"

Bork.

I don't know exactly what empathy means. I suppose at a minimum it means you want a judge who will depart from the meaning of the constitution when a sympathetic case arises. It does seem to raise a warning that we're talking about a judge who does not follow the law.

I know his hearing and subsequent Senate rejections were more logs on the culture wars pyre, but the nation really dodged a civil rights catastrophe back in 1987. Because if he can be so disingenuous and intellectually dishonest about the meaning of the word "empathy" and what it means for a judge, imagine what he could have done with words like, "privacy" or "human dignity."