The Return of Robert Bork


My former colleague Dave Weigel notes that Robert Bork has signed up as an adviser to Mitt Romney. And if that doesn’t scare the hell out of you, you haven’t paid much attention to Bork over the years. He also links to this column by Joe Nocero, which argues that the Bork confirmation hearings were “the end of civil discourse in politics.” To say that Nocero is full of crap would be an insult to crap.

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.

Yes, Bork had impeccable legal credentials. But this glosses over more than just a bit. He didn’t just think the First Amendment didn’t apply to pornography; he thought the First Amendment didn’t apply to anything other than explicitly political speech. Artistic speech? Scientific speech? Literature? In Bork’s view, the First Amendment did not prohibit censorship of such things.

And he didn’t just think Roe v Wade was wrongly decided, he thought Griswold v Connecticut and Loving v Virginia were wrongly decided too. Gee, I can’t imagine why people criticized him and opposed his nomination.

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.

Oh, nonsense. Both Bork and Wright deserved their fall from grace.

Comments

  1. Hercules Grytpype-Thynne says

    P.S. I was quite surprised when I read Joe’s piece in the NYT. Usually he makes more sense than this.

  2. Michael Heath says

    Joe Nocero writes:

    For years afterward, conservatives seethed at the “systematic demonization” of Bork, recalls Clint Bolick, a longtime conservative legal activist.

    Americans involved in the Bork confirmation hearings didn’t demonize Judge Bork, they instead revealed he was a demon.

  3. carlsonjok says

    Civil discourse died during the Presidential election of 1800 and it probably wasn’t very healthy prior to that.

  4. gshelley says

    I read in interview in Newsweek (or possibly Time). He was complaining about Obama being bad because of what he has done to the economy and foreign policy, and that his two appointments are likely to be activist judges
    Plus he hasn’t been able to forgive Ted Kennedy for what he did to him and Biden isn’t very intelligent.

  5. Dennis N says

    The sad part is, they’re really just still seething about Nixon being run out of office, despite the fact that he was a crook and legally got away with it.

  6. naturalcynic says

    Bork fell from grace on Oct. 20, 1973 for his part in the Saturday Night Massacre. He was third in command at the DoJ when his superiors Richardson & Ruckleshaus resigned instead of firing Watergate prosecutor Archibald Cox. Bork supposedly stayed on and didn’t resign because it preserved the Constitutional process. What it really preserved was the idea that the president is above the law.
    The confirmation hearings merely confirmed his fall.

  7. lordshipmayhem says

    I thought the Republicans were still upset about that “FDR getting the US into World War II” thing.

    Let’s face it – the Republican Party is, at present, completely Borked.

  8. Aquaria says

    Did y’all know that Bork, a strong advocate of making the judicial system more favorable to the rich and corporations–uh–of tort reform–yeah, that’s the ticket, filed a million dollar class action lawsuit against some snob club (Yale?) when he fell there.

    He deserves to be punched in the face for that, because he has shrieked and whined for decades that people like us getting a high-dollar award for a fall is evil, but now when it happens to him, he deserves to be compensated for his pain and suffering because, well, his injury is real and we’re just a bunch of greedy liars.

    The sad part is, they’re really just still seething about Nixon being run out of office, despite the fact that he was a crook and legally got away with it.

    QFFuckingT

    I read in interview in Newsweek (or possibly Time). He was complaining about Obama being bad because of what he has done to the economy and foreign policy, and that his two appointments are likely to be activist judges

    Shiny, shiny mirror.

    Plus he hasn’t been able to forgive Ted Kennedy for what he did to him and Biden isn’t very intelligent.

    Poor diddums. Kennedy wiped the floor up with him, and deservedly so. The guy is smart in a low, cunning sort of way, but he’s evil. He doesn’t need to be anywhere near any levers of power. Ever.

  9. D. C. Sessions says

    There are really two alternative narrations here:

    1) Robert Bork is not just conservative, but a radical who would have been a disaster on the Court. The Senate performed the role that it was given in the Constitution of restraining Presidential power to control the courts. In which case, the “end of civility” stems from the extremist nomination of such a radical in the first place.

    2) Robert Bork was and is a great legal scholar and the Senate was acting in an unprecedentedly partisan way to reject the President’s choice for the Court.

    IMHO, what we’re seeing here is another in the “he who controls the terms of discussion controls the political outcome” process [1]. There are a lot of subplots, of course. One is the “how dare you object to the absolute power of the Imperial Presidency.” Others abound.

    I suspect that the long-term consequence of the Bork hearings, though, is the practice of nominating people to the Supreme Court who have no discernable record. The Senate has long since taken to avoiding real examination of a candidate’s thoughts on real judicial topics, and without a paper trail there isn’t much left that they can object to. A beneficial side effect is that nominees are typically much younger than they used to be, which allows the nominating President to influence the Court for a much longer time (and for partisan Justices to time their retirements for Presidents who will continue the slant.)

    [1] Similar to accusing those who object to the Ryan “kill Medicare” plan and Herman Cain’s “shift all the taxes to the poor” plan of “class warfare.” Nominating Bork wasn’t radical or partisan, but bringing up his record was.

  10. Aquaria says

    I suspect that the long-term consequence of the Bork hearings, though, is the practice of nominating people to the Supreme Court who have no discernable record.

    Bork’s wasn’t the first acrimonious Supreme Court nomination, and nobody before him felt like they had to play juvenile revenge games for eternity after the rejections.

    The problem wasn’t that Bork got smacked around like a low-hanging pinata–it happens; the problem is that his Us vs Them mouthbreathing supporters couldn’t handle being told no, so they’ve been throwing a tantrum ever since.

  11. Aquaria says

    And you want to talk about records–one of Washington’s nominees got called a drunkard and mentally ill for opposing a treaty! He later got nominated and confirmed, even served as Chief Justice, but Rutledge took a ton more abuse than Bork did, without his or his supporters’ becoming foaming at the mouth idiots over his rejection.

  12. tomh says

    Bork signed on with Romney last August, in what seemed like an obvious ploy to show the tea partyers that Romney can be as right wing as the rest of the crew. The chance of him actually taking any legal advice from Bork is very slim.

  13. Modusoperandi says

    Aquaria “The problem wasn’t that Bork got smacked around like a low-hanging pinata–it happens; the problem is that his Us vs Them mouthbreathing supporters couldn’t handle being told no, so they’ve been throwing a tantrum ever since.”
    To be fair, they’ve been doing that since the Lincoln election.

  14. jakc says

    Yes, it’s a shame that Senators can’t just oppose a justice for being ill-suited. It’s a shame that poor choices – a Thomas, a Roberts, an Alito – will serve for 30 or 40 years. But let’s get something straight – civil discourse in politics? Largely in the imagination. Go read the Lincoln-Douglas debates, with long passages of Douglas accusing Lincoln of saying “negro” to northern Illinois (abolition) audiences and using “nigger” in Little Egypt (southern Illinois). Political discourse is rarely civil, and if justices got to stay out of in the past, it was because they didn’t do much and didn’t stay long.

    These things matter.

    LBJ bungled his last appointments, giving Nixon four. It could have been a much better court. We could have had a court working to upheld the Warren court in the 70’s and 80’s. We got Rhenquist. Robert Bork might be warm and fuzzy guy and a great human being, but he would have been a lousy justice. It’s a shame he couldn’t be rejected without trashing him first, but that’s life and this stuff is important. I’d rather see him borked than on the Court.

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