In the summer of 1987, right out of college, I was a summer intern for Senator Joe Biden, who was chairing the Robert Bork confirmation hearings. My contribution to the epic battle was modest: I helped with research for a speech on the history of the confirmation process, in which Biden argued that the Senate had the duty to scrutinize not only the legal qualifications but also the constitutional views of nominees. This was a controversial proposition at the time; today it has been taken to extremes that neither Biden nor Bork, who died today at 85, could have imagined.
But even from the sidelines, as I celebrated Bork’s defeat, I remember feeling that the nominee was being treated unfairly. Senator Edward Kennedy set the tone with a demagogic attack. “Robert Bork’s America,” he said, “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, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans.”
Bork’s record was distorted beyond recognition, and his name was transformed from a noun into a verb. The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking. And it had obvious costs for Bork.
Naturally, condolences are to be extended to the man’s family and friends.
However, Jeffery Toobin (award-winning author on legal matters, including the SCOTUS) has written a concise summary of why so many found the idea of Bork on the highest court in the land so objectionable:
Bork was born in 1927 and came of age during the civil-rights movement, which he opposed. He was, in the nineteen-sixties, a libertarian of sorts; this worldview led him to conclude that poll taxes were constitutional and the Civil Rights Act of 1965 was not. (Specifically, he said that law was based on a ‘principle of unsurpassed ugliness.’) As a professor at Yale Law School, his specialty was antitrust law, which he also (by and large) opposed.
Richard Nixon appointed Bork the Solicitor General of the United States, and in that post Bork showed that he lacked moral courage as well as legal judgment. In 1973, Nixon directed Elliot Richardson, the Attorney General, to fire Archibald Cox, the Watergate special prosecutor. Richardson refused and resigned in protest, as did his deputy William Ruckelshaus. Bork, the third-ranking official in the Justice Department, had no such scruples and thus served as executioner in the Saturday Night Massacre, to his enduring shame.
One of his last books may have summed up his views best. Thanks in part to decisions of the Supreme Court—decisions that, for the most part, Bork abhorred—the United States became a more tolerant and inclusive place, with greater freedom of expression and freedom from discrimination than any society in history. Bork called the book, accurately, ‘A Country I Do Not Recognize.’
Read the whole thing here: newyorker.com
Toobin feels that Senator Kennedy was not “too harsh” in his characterization of Bork and his views in his famous (or infamous, depending on where you stand) speech. I would disagree a bit. The speech itself was more polemical than necessary, and the speaker was himself so flawed as to open the door to Bork’s supporters attacking the messenger and ignoring the message (as Rush Limbaugh did just today).
Having said that, I strongly believe that the 58 Senators who voted against Bork’s confirmation did this nation a great service.
Robert Bork, the former US solicitor general and failed Supreme Court nominee, has died aged 85.
His son said Bork had died on Wednesday from complications of heart ailments.
His 1987 nomination bid to the US high court resulted the first national political and lobbying offensive mounted against a judicial nominee.
Bork also presided over the firing of the special prosecutor investigating Watergate as President Richard Nixon’s acting attorney general.
An expert in anti-trust law, Bork later became a strong critic of liberal policies after the Supreme Court confirmation fight made him a hero to conservatives.
Romney Advisor Robert Bork: Civil Rights Act Is ‘Unsurpassed Ugliness,’ But Contraception and Porn Bans Are Fine
Yesterday, former Massachusetts Gov. Mitt Romney (R) announced his presidential campaign’s “Justice Advisory Committee,” along with its co-chair Robert Bork.
The Senate rejected Bork’s 1987 Supreme Court nomination in a bipartisan 58-42 vote, but Bork has since emerged as the slain martyr at the center of the conservative legal movement’s creation myth. In this sense, Bork’s involvement is a coup for a campaign that is struggling to prove Romney’s hard right credentials in the face of his decision to ensure that all people in his state enjoy access to affordable health care.
For the majority of Americans who are uninterested in hard right governance, however, Bork’s record raises very serious questions about whether someone who would take legal advice from him has any business appointing judges and Supreme Court Justices:
Opposition To Civil Rights: One year before President Lyndon Johnson signed the Civil Rights Act of 1964, which banned whites-only lunch counters and other forms of discrimination, Bork criticized the Act as a moral abomination. “The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.”
No Right To Contraception: In Griswold v. Connecticut, the Supreme Court held that married couples have a constitutional right to use contraception — a decision that was later extended to all couples. Bork called this decision “utterly specious” and a “time bomb.”
Banning Porn, Art and Science : Bork also called for shrinking the size of the First Amendment until it is small enough to be drowned in a bathtub. “Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”
Believes Government Can Criminalize Sex: In its landmark Lawrence v. Texas decision, the Supreme Court reached the obvious conclusion that it is none of the government’s damn business who anyone is having sex with — overruling a previous decision in Bowers v. Hardwick. Bork, however, wrote that “Bowers v. Hardwick, which upheld the community’s right to prohibit homosexual conduct, may be a sign that the Court is recovering its balance … . I am dubious about making homosexual conduct criminal, but I favor even less imposing rules upon the American people that have no basis other than the judge’s morality.”
No Constitutional Protection for Women: Bork also claimed that the Constitution does not shield women from gender discrimination. In Bork’s words, “I do think the equal protection clause probably should be kept to things like race and ethnicity.”
More at TP.