Private: When the Ugliness with Bork Really Began: A Response to Joe Nocera

By Jamie Raskin, a professor of constitutional law at American University Washington College of Law and a Maryland State Senator. He is teaching at Yale Law School this semester and is a Senior Fellow at People for the American Way, which will publish his comprehensive report on Robert Bork next week.  

Joe Nocera’s recent New York Times column had an intriguing headline: “The Ugliness Started With Bork.”

But to which ugly events did this headline refer?

I assumed it was a reference to Bork’s infamous 1963 New Republic article in which he denounced the Civil Rights Movement’s push for anti-discrimination laws in public accommodations, like restaurants and motels, as a violation of the right of business owners to exclude people they do not wish to associate with. Forcing business owners to serve members of minority groups, Bork wrote, “is itself a principle of unsurpassed ugliness.”

Perhaps the headline was a catch-all characterization of everything Bork has written since he left the bench in 1987 to become a right-wing polemicist -- for example, his admiring words for Chilean dictator Augusto Pinochet or his endorsement of the stab-in-the-back thesis relating to the Vietnam War. Or maybe his attacks on the “rot and decadence” of American society, a “fact” about which “there can be no dispute.” In his book-length assault on American culture, Slouching Toward Gomorrah, he writes: “What America increasingly produces and distributes is now propaganda for every perversion and obscenity imaginable.” 

Ugly, no?

But the headline refers to the fact that the United States Senate voted 58-42 on October 23, 1987 to reject President Ronald Reagan’s nomination of Bork to the U.S. Supreme Court, with six Republican senators joining all but two Democrats in sinking the nomination. This occurred after many days of hearings and weeks of public debate.

It’s, of course, sad when people don’t get what they want but Bork shares the misfortune of being rejected by the U.S. Senate for a seat on the U.S. Supreme Court with no fewer than 28 other presidential nominees in our history, and his rejection was far more richly deserved than most. 

Nocera feels this case is different because “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.”

Well, the Senate and the country looked at all that. When Bork said that he wanted to be on the Court because it would provide him an “intellectual feast,” most Americans came to the conclusion that, with Bork at the table, they would soon appear somewhere on the menu. He spent his time as a law professor driving the whole field of antitrust law way to the Right, his time as a judge siding with business corporations against the public interest and government against individual citizens -- and everyone knows about the role he played in the Justice Department during the Saturday Night Massacre. When President Richard Nixon ordered Attorney General Elliot Richardson and then Deputy Attorney General William Ruckelshaus to sack Archibald Cox, the diligent Watergate special prosecutor, they both refused and resigned. Bork became Acting Attorney General and promptly fired Cox, later citing Cox’s association with “Nixon’s despised and feared political enemy, Senator Edward Kennedy” as a reason why it was a “mistake” for Cox to have been made special prosecutor in the first place.  

But Nocera insists that Robert Bork was no “extremist,” and goes so far as to suggest that Bork would have been “a restraining force” on the Court. These claims show that Nocera is not fully informed about Bork’s views and how they would have changed America had he been confirmed.

In fact, we know just how Robert Bork would have voted if he were a justice, since he has spent so much of his time since castigating the Court, including the deeply conservative Justice who was confirmed (by a vote of 98-0) to the seat he was denied — Justice Anthony Kennedy.  Consider:

• Bork condemned as “lawless” and “a new low” the Supreme Court’s decision in Roper v. Simmons, which banned state execution of juveniles — a practice that he would allow despite the fact that no other country in the world sanctions it. Justice Kennedy wrote the majority opinion.

• Bork rejects the Supreme Court’s decision in Planned Parenthood v. Casey upholding a woman’s right to choose an abortion.  He is adamant that Roe v. Wade be overturned and states be allowed the power to prosecute women and doctors who violate criminal abortion laws.  As Bork states, “Roe, as the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century, should be overturned.  The Court’s integrity requires that.” (See The Tempting of America)         

• He attacked the Supreme Court for its 7-1 decision in U.S. v. Virginia barring the state-funded Virginia Military Institute from discriminating against women. He argued that the “feminized Court” had reached its conclusion based on “sterile feminist logic” and rejected the mainstream view that sex-based classifications by government trigger heightened scrutiny. 

• Bork deplores the Court’s decision in Lawrence v. Texas striking down state laws that criminalize gay sex and has advocated amending the Constitution to declare that marriage is between “one man and one woman.”  (He even championed for a while a constitutional amendment permitting a simple majority of Congress to overturn the Supreme Court’s constitutional holdings, but appears to be backing away from this position.)

• Bork lambasted the Court’s decision to uphold affirmative action as constitutional, despite the consensus of most universities, and even the United States armed services, that such programs are needed to counter historical discrimination and promote diversity in these institutions.

• He has an embarrassing record on voting rights, vehemently opposing the fundamental constitutional principle of “one person, one vote” and defending the constitutionality of the poll tax and literacy test in state elections.

In short, on these and many more subjects, Robert Bork is clearly outside of the mainstream of American constitutional jurisprudence as it relates to the rights of the people and he has proven to be even more extreme in his views since 1987, the year when he actually toned things down for his hearings and recanted a number of prior positions.

But Nocera swallowed the refrain that Bork was the victim of character assassination although he never identifies a single example of a falsehood told about Bork during his hearings. Nocera also promotes the idea that the nationwide campaign to save the Bill of Rights from a Justice Bork somehow poisoned our politics; he even quotes conservative lawyer Clint Bolick, who later smeared Professor Lani Guinier as a “quota queen,” about how Bork would have been a “restraining force” on the Court.  In what universe would that have taken place?

 Bork himself prepared the script for his current rehabilitation by gullible columnists when he wrote that “the politics of personal destruction are an invention of the Democratic Party” in The Tempting of America. This bizarre claim ignores a record of genuine “personal destruction” in the Republican Party that includes the great witch-hunter Senator Joe McCarthy and Bork’s old friend from the Watergate period, Richard Nixon, the master of the dark arts who perfected tactics of personal destruction that included break-ins at psychiatrists’ offices and party headquarters, vindictive IRS audits, the keeping of enemies lists, spying on political opponents, sabotage of political leaders and movements, not to mention FBI and CIA covert operations against opponents.    

We can only hope that, before the next writer reprints Robert Bork’s talking points, he or she will take a few moments to research their validity and then ask the relevant questions: What does Robert Bork really stand for?  What are his constitutional views?

Constitutional Interpretation, Importance of the Courts, Judicial Selection, Supreme Court