Bork (1927-2012)

OMG, is that, is that . . . I think it is -- it's Bork self-borking!

"As Senator Edward Kennedy put it in a famous speech on the Senate floor, 'Robert Bork's America 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, schoolchildren could not be taught about evolution, [and] writers and artists would be censored at the whim of government.'

"Was Kennedy too harsh? He was not, as Bork himself demonstrated in the series of intemperate books he wrote after losing the Supreme Court fight and quitting the bench. . . ."

-- from Jeffrey Toobin's "Postscript: Robert Bork,
1927-2012," on newyorker.com

by Ken

Howie says that if I write about Bork I shouldn't be too rude. (Is it too rude to chronicle my first reactions to news of his passing? First was "Good!" Then came, "It's about [expletive deleted] time!") If I can't be too rude (and I don't think I can manage that; he brings it out in me), then this is going to be pretty short. Luckily, I've got a secret weapon, which we'll come to in a moment.

First, let me just make two quick points about Bork.

(1) You know how so often we hark back to public figures who in their time seemed to us about as far right as a person can be this side of close-watched institutional care? Barry Goldwater is the example who pops to mind. A man who even learned to live with the sobriquet "extremist," as in "Extremism in the defense of liberty is no vice," and "moderation in the pursuit of justice is no virtue." Well, to the true believers of today's Far, Far Right, Goldwater would practically be a socialist. Just yesterday we saw Yves Smith pointing out to Bill Moyers that effing Richard Nixon, who could pander to the Farthest Right without shame, was in many respects to the left of President Obama.

About one figure of the old Far Right, however, I can't imagine any impulse to revisionism, and that's Bork. And one thing that's almost charming about him -- the only thing about him I can imagine thinking of in those terms -- was his utter freedom from compunction about his extremism. When it came, for example, to his bitter Senate confirmation hearings for his Supreme Court nomination, I imagine he must have been not just bemused but downright angry about the exhortations he must have gotten from the people trying to shepherd him through not to be so blunt. How they must have cringed as the poison spewed forth from his mouth! Not that they necessarily disagreed; it's just that they understood how terrible it sounded to people who didn't have diseased brains.

(2) Which brings me to my other point -- the eternal and infernal term "borking" that was born in those hearings. To right-wingers to this day, their god Bork was cruelly, nay nefariously done in by the most insidious conspiracy in the history of the American Republic, a conspiracy of which the trigger man, if not the architect, was Bork himself. What those vile Democrats did was to get Bork to say just what he believed. And to this day few things make right-wingers crazier (as if they weren't crazy enough to begin with) than being called to account for things they've said and done! Talk about diabolical!

Of course Bork got the last laugh. His "ideas" had a lot to do with laying the "intellectual" groundwork for the modern-day crackpot Right.


NOW FOR THAT SECRET WEAPON . . .

I wondered if maybe, say, constitutional whiz Ronald Dworkin had dashed something off for the NYRB website. No, but next best is Jeffrey Toobin on newyorker.com. Our Jeffrey would never be too rude, would he? Here's the "Postscript" he contributed to the site's News Desk forum. Again, nobody would ever accuse our Jeffrey of being too rude, would they? (Not me! You'll note, by the way, overlap between Jeffrey's piece and my two points. I don't see how it can be helped. Facts are facts.)

Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century. The fifty-eight senators who voted against Bork for confirmation to the Supreme Court in 1987 honored themselves, and the Constitution. In the subsequent quarter-century, Bork devoted himself to proving that his critics were right about him all along.

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 1964 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.

In 1981, Ronald Reagan nominated Bork to the United States Court of Appeals for the District of Columbia Circuit, and then, six years later, to the Supreme Court. To his credit, Bork gave honest and forthright answers to the questions posed by the senators on the Judiciary Committee, which was led admirably by then Senator Joseph Biden. Much of the questioning focussed on Bork's long-held belief that the Constitution does not include a right to privacy. As one of the creators of the "originalist" school of constitutional interpretation, Bork asserted that since the framers did not use the word "privacy," that value was not reflected in our founding document. Accordingly, he opposed such decisions as Griswold v. Connecticut, which said states could not ban married couples from buying birth control, and Roe v. Wade, which prohibits states from banning abortion. He promised the senators he would reflect those views as a Supreme Court Justice.

It was said, in later years, that Bork was "borked," which came to mean treated unfairly in the confirmation process. This is not so. Bork was "borked" simply by being confronted with his own views -- which would have undone many of the great constitutional landmarks in recent American history. As Senator Edward Kennedy put it in a famous speech on the Senate floor, "Robert Bork's America 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, schoolchildren could not be taught about evolution, [and] writers and artists would be censored at the whim of government."

Was Kennedy too harsh? He was not -- as Bork himself demonstrated in the series of intemperate books he wrote after losing the Supreme Court fight and quitting the bench, in 1987. The titles alone were revealing: "The Tempting of America," "Slouching Towards Gomorrah: Modern Liberalism and American Decline," and "Coercing Virtue: The Worldwide Rule of Judges." 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."

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