“There’s That Explanation, and Then There’s One That Makes Sense.”
Never let it be said that our comments section is not the site of unprecedented events! David Nieporent has actually attempted to cite erroneous claims in Ted Kennedy’s famous Bork speech. His strategy seems to be “willful misreading”:
Well, I’m pretty sure that nobody would have forced any woman into a back-alley abortion; not even the worst environmentalists in the U.S. actually support forced abortion, do they?
And I don’t recall Robert Bork ever campaigning to outlaw the teaching of evolution. Nor do I quite see where Bork ever said anything that suggested that “rogue police could break down citizens’ doors in midnight raids.” (Whatever that means.) And why would “the doors of the federal courts [] be shut on the fingers of millions of citizens”?
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.
I am sorry, but Kennedy’s actual words, nor their actual context, will never carry as much weight as the voices in Nieporent’s head. Always remember that conservatives create their own reality and do not inhabit the same one as the rest of us.
If I had said anything as “tough and uncharitable” about “Obama’s America”, I would have been mocked relentlessly.
I won’t mock, because I am not that familiar with Robert Bork, but I will ask for you to explain why you think Bork’s legal opinions would have lead to these results:
1. women would be forced into back-alley abortions
2. blacks would sit at segregated lunch counters
3. rogue police could break down citizens’ doors in midnight raids
4. schoolchildren could not be taught about evolution
5. writers and artists could be censored at the whim of the Government
6. the doors of the Federal courts would be shut on the fingers of millions of citizens
And finally, why did Kennedy follow that up with “America is a better and freer nation than Robert Bork thinks.”
Because prior to decisions Bork would’ve overturned and legislation he explicitly labeled “unconstitutional” that was the real-world status quo?
It was legal to force women to have back alley abortions?
I am asking this honestly out of curiosity, and I would like specifics. Not details, just a good starting point to understand why Kennedy said each of these things. I will research and read, I do that tirelessly, so links will be fine.
The “force” here is used to describe the back-alleys, not the abortions. Could be written, “Force abortions to once again be performed in back alleys.”
Oh, we’re playing Brad’s Extreme Semantics again. This time it’s especially fun because such an obtuse interpretation was already addressed by Scott in the original post:
“Force” here does not mean that Bork or someone else could legally terminate a woman’s pregnancy against her will; it means that as a matter of law a woman looking for an abortion would need to resort to the black market. Nor does “back alley” necessarily refer to that as the literal venue; the term “back alley abortion” has long been used colloquially to refer to the black market version of the procedure.
I know from reading your comments that you’re into formal logic. Maybe you should a break from that and check out rhetoric.
As noted baseball writer Scott Lemieux once said:
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.
but I will ask for you to explain why you think Bork’s legal opinions would have lead to these results:
Already addressed in the post. What, you think Jim Crow would have been dismantled without any of the federal intervention that Bork believed was both unconstitutional and unwise?
Please answer me briefly on numbers 3-6. I already know that you can’t oppose the CRA of 1964 without being a hideous racist, and you cannot oppose Roe v Wade without hating women. The thing is that 4 of Kennedy’s explicit charges have not been justified.
I am also a little confused, as Bork may have opposed the CRA of 1964, but he also openly stated that Jim Crow laws and “separate but equal” policies were unconstitutional.
Since Bork endorsed the Brown v Board of Education opinion, why do you think he would have supported Jim Crow laws?
Please answer me briefly on numbers 3-6. I already know that you can’t oppose the CRA of 1964 without being a hideous racist, and you cannot oppose Roe v Wade without hating women.
You’re missing the point. You’ll note that neither I nor Kennedy called Bork a racist. What I am saying is that, when it mattered, Bork thought that the maintenance of a racial caste system was the price worth paying if the alternative was more regulation of business. Similarly, Kennedy didn’t say that Bork hated women. He said that under Robert Bork’s constitutional vision many women would be forced to obtain black market abortions. Since this is true, his motivations are beside the point.
For most of the rest, see his 1971 “neutral principles” article.
Whether or not it would have been, what on earth does your question have to do with Bork’s nomination in 1987? You yourself say that Kennedy was not talking about what Bork would have personally done, but rather about the consequences of putting Bork on the Court.
If Bork were put on the Court, would Jim Crow have been reinstated? No, obviously not.
Whatever Bork’s views two decades earlier, (1) Bork wasn’t going to declare the CRA unconstitutional in 1987; (2) if he had, it would have been a lone vote; and (3) even if Bork had convinced four other justices to go along with him with the force of his intellect and the CRA was overturned, Jim Crow wasn’t coming back.
In short, Kennedy was at best wrong, and at worst lying. The other possibility is that your interpretation of what Kennedy was saying — that he was talking about the consequences of putting Bork on the Court, rather than Bork’s own views — is wrong.
If Kennedy had said that “if Robert Bork is appointed to the Supreme Court, Jim Crow will immediately be reinstated,” then your response would be right, but he didn’t. He was discussing Bork’s public constitutional views, and I remained puzzled that Bork’s defenders believe that it’s beyond the pale to criticize his stated views on constitutional questions. And, certainly, nothing Kennedy said was inaccurate.
Scott, Scott, Scott.
You, just a short while ago, defended the accuracy of Kennedy’s comments by saying that he wasn’t discussing what Bork would personally do, but was discussing the consequence of putting Bork on the Court. Now you’re walking that back, saying that he was discussing Bork’s constitutional views.
But of course (a) it’s hard to square that with the actual language Kennedy used (“Robert Bork’s America is a land in which… blacks would sit at segregated lunch counters”), and (b) he wasn’t discussing Bork’s constitutional views; he was discussing Bork’s views more than two decades earlier.
Once again, it’s “inaccurate” to say that someone holds views when someone used to hold them but no longer does. (It would be sort of like trying to discredit the Democratic senate of the 2000s by pointing out that Robert Byrd was in the KKK — something I believe you have rejected.)
David M. Nieporent, the faith you place in conservatives when they claim they no longer hold certain views may be sadly misplaced.
Perhaps you are forgetting Trent Lott’s remarks when Strom Thurmond retired.
David,
While I agree with you, Scott has been arguing with “Robert Bork’s America” being defined as the America that would result from Bork’s legal opinions, not from Bork’s appointment since the beginning, or at least it seems to me.
Of course, the part about segregation is not supported by his stated public opinion at the time (even if that may have been a show). And I find it rather ludicrous to believe that Bork found no constitutional protections against rogue police raids and unchecked and arbitrary censorship of the arts.
I find it rather ludicrous to believe that Bork found no constitutional protections against rogue police raids and unchecked and arbitrary censorship of the arts.
Based on what evidence in Bork’s public statements and writings?
I do believe he stated fairly affirmatively before 1987 that the “political speech” he considered to be protected extended into the arts.
Actually, I think Bork would have been absolutely opposed whimsical most art as he would have recognized the political and democratic content of most art.
He also was making arguments that were watered down versions of those Elena Kagan made on executive privilege under Obama, and I believe that is where Kennedy got his rogue police comment, although I’m not sure.
Its not my job to prove a negative.
“Bork believed that censorship of art and indiscriminate police raids are not constitutionally protected” is not a negative. It’s the kind of thing for which there should be actual evidence in the record, not just “I can’t believe anyone would think that.”
Ideally that evidence would not come from the record he started to generate when he knew he would likely be nominated to the Supreme Court and would have to be confirmed by a Democratic Senate, and therefore was under pressure to moderate his earlier pronouncements. But that may be all there is.
And that isn’t what I said.
What you said was:
Also not a negative. But if you want to revise and extend your comments, feel free, if you’re still looking for a position you can defend for more than a couple of comments.
I agree with you on the abortion complaint. But I also recognize that the complaint is just begging the question. Complaining about women being forced into back-alley abortions is only valid if you already believe they should be legal. For example, no one complains about rapists being forced into back-alley rapings, and likewise the purpose of laws against rape is to stop them from happening, not to move them to where they can’t be seen. Implying that someone who opposes abortion wants women to have to get them illegally is intellectually dishonest.
I agree with you on the abortion complaint… Complaining about women being forced into back-alley abortions is only valid if you already believe they should be legal.
So, at the end of the day, you admit that Kennedy was right about the consequence of abortion restrictions, and yet felt the need to wax pedantic over nonsensical readings of the word “forced?”
This is a joke. Right?
Who said anything about “wants”?
Obviously Kennedy did believe they should be legal, so what’s your point?
Implying that someone who opposes consumption of alcohol wants organized crime to distribute alcohol is intellectually dishonest. One should just come right out and assert it.
The refusal to acknowledge that attempting to ban the consumption of alcohol will lead to the distribution of alcohol by organized crime is intellectually dishonest
Nobody is refusing to acknowledge that. But Kennedy’s statement is worded as if Bork would prefer women get back-alley abortions.
Kennedy’s statement is worded as if Bork would prefer women get back-alley abortions.
Damn Kennedy for insisting that Bork face the known social policy consequences of his viewpoints like a grown-up!
Nobody is refusing to acknowledge that. But Kennedy’s statement is worded as if Bork would prefer women get back-alley abortions
You’ve gone from arguing that Kennedy’s statement was implausible to . . . I don’t know. What the fuck are you even complaining about at this point?
I am asking this honestly out of curiosity,
I feel confident that nobody here believes you asked that deliberately obtuse question out of honest curiosity, rather than an ability to be annoyingly pedantic.
If you were, in fact, honestly curious about that question, that would mean you are far, far less intelligent than I previously gave you credit for.
I get number one, even though I think it an unfair charge. I get number two and think it is valid.
However, 2-6 sound so incredibly egregious, I would like to see the public writing or opinion that Ted Kennedy thought lead to them, if only for future reference. If Bork is the legal heavyweight he is made out to be, his arguments will certainly reappear.
Bork’s arguments consistently reappear, but that’s not because he is a heavyweight, or that the arguments are compelling.
It’s because what passes for conservative thought in the United States amounts to either (a) straight up intellectual dishonesty or (b) the conviction that anything will become persuasive if repeated long enough and loudly enough.
Actually, now that I think of it, that doesn’t have to be an “either” situation.
A long time ago, I had actual citations for each of these claims. I’m not going to re-do that work just because someone else won’t do his own homework, but off the top of my head I can point to a 1971 article Bork wrote in the Indiana Law Review for claim number 5.
Don’t worry, I’m doing my homework. I kinda figured asking questions on a blog maintained by a liberal legal scholar would be the most effective way of doing my homework.
I didn’t find explicitly the paper you were talking about. I did find a Chicago Tribune (who seemed to be extremely far into the Bork camp) that said:
“Judge Bork later admitted that Prof. Bork had been wrong in 1971. He wrote a letter published in the American Bar Association Journal in 1984 which said:
“I do not think . . . that 1st Amendment protection should apply only to speech that is explicitly political. . . . I have long since concluded that many other forms of discourse, such as moral and scientific debate, are central to democratic government and deserve protection.“
1971 article reprinted here
Thank you
Brad Potts,
JUst read up just a little bit about him, and you’ll be able to answer your own questions.
Two things should make it clear just how radical he was in those times:
1. They’re still pissed he’s not on the court, because they could have de-evolved this country much faster than they already have.
2. He’s still a hero to the hard right.
And it’s not like HE moved to THEM. It’s more like THEY’VE all moved a part of this country TO HIM.
Finally, no one argued he wasn’t a brilliant legal mind. Just like you couldn’t argue that Darth Vader didn’t have a fine grasp of “The Force.” It’s just that both used their brilliance to justify the dark side and increase its power.
I am somewhat familiar with him, and I am really not a fan.
However, the only thing that seems truly remarkable about the man is this:
http://dictionary.reference.com/browse/bork
And the truly remarkable thing about Napoleon, Bismarck and Pershing is that they’ve all had pastries named after them. What’s up with that?
Also, Chief Bear Claw.
Robert Maplebar, noted pr0n merchant.
Robert “Boston” Creme, who did things to donuts that shan’t be mentioned in polite company.
Is he a brilliant legal mind? I’m not so sure. In the context of mid-Twentieth Century legal jurisprudence Bork’s arguments were unusual, but that could just be that the parade had those arguments by sometime around 50 years earlier. Bork always seemed to me to be a 19th Century thinker, but maybe that was just the beard.
I won’t mock, because I am not that familiar with Robert Bork, but I will ask for you to explain why you think Bork’s legal opinions would have lead to these results:
Because under the jurisprudence Bork advocated, before the decisions Bork rejected, there was a period of time we can call “actual remembered history.” Because Kennedy looked at the world as it really was, and remembered the real events that actually happened, even though libertarian theory says that the Free Market would preclude those events.
And finally, why did Kennedy follow that up with “America is a better and freer nation than Robert Bork thinks.”
Because Kennedy made that speech a long time ago, back when we were, in fact, a better and freer nation than we are today.
Granted, today, we do restrict abortion more and more. We are resegregating. we do break down doors in the middle of the night. We do try and not teach evolution. We do censor in new and creative ways.
In the end, Kennedy’s vision lost, and we are poorer for it.
Because Kennedy looked at the world as it really was, and remembered the real events that actually happened, even though libertarian theory says that the Free Market would preclude those events.
I only wish to correct what you think libertarian theory says. I do not wish to argue whether it is correct .
Libertarians don’t argue that the Free Market would preclude anything, rather that the free market provides economic incentives against such activity. Libertarians do not believe the market makes everyone moral and benign anymore than progressives think that government can do it.
No, American libertarians believe that a free market exists without government intervention. Perhaps we can have a semantics fight over the word “free” but unregulated markets tend toward monopolization and price-fixing. They are neither competitive or innovative.
The wonders of the unregulated market were a major part of the trust era of the Gilded Age. I always implore those who indulge in American libertarianism to just read their US history. We had that system in a land chock full of resources and quickly after the frontier disappeared it became completely unworkable.
Sometimes I feel like I’m arguing with 12th graders.
You don’t understand libertarianism, but you speak from a position of authority about it.
And I have asked on numerous occasions for the commenters on here to read their history as well:
http://www.amazon.com/Triumph-Conservatism-Gabriel-Kolko/dp/0029166500
You don’t understand libertarianism, but you speak from a position of authority about it.
Yes, yes. Could you repeat your claim that Alan Greenspan, a member of Ayn Rand’s inner circle, was No True Libertarian, so that we can gain enlightenment about libertarian positions?
Or how about the one where unions advocate central planning of the economy? That was a classic.
Or you could deliberately adopt a willfully obtuse misreading of the word “forced,” then call us immature when we call you on it.
Fair enough, although I never said Greenspan wasn’t a libertarian, but most of you are fairly ignorant of libertarianism, yet most of you refer to it as if you had written the Libertarian’s Bible.
Fair enough, although I never said Greenspan wasn’t a libertarian
While my search-fu is too weak to find the reference, a month or so ago, you stated that no libertarians had ever held high office. I cited Greenspan, and you replied that libertarians despise the Federal Reserve, so No True Libertarian would ever head it. Yes, you explicitly, with no wiggle room, denied Greenspan’s libertarian cred.
You responded to none of the points I made in my post. I’ve come across many clever high school seniors, and I wouldn’t be so dismissive of their arguments.
I don’t speak from authority on American libertarianism. I do base my understanding of it on the writing and statements of those who claim to be libertarians. The Libertarian Party is present in nearly every state and has been around since I became politically aware.
What I CAN do is compare American libertarianism to European libertarianism, which in the US would most commonly be called anarchism. I am very sympathetic to this view. Which is why I can never understand many of the basic tenets of American libertarianism. They emphasize individual freedom but they dismiss democratic process in favor of property rights.
If you are arguing for a more European type understanding of libertarianism that’s great, but do realize that linking a book title and calling that the authoritative source of American libertarianism doesn’t make it so. Just put what you believe out there and stop pushing arguments where you score make-believe points on semantics.
I worked with a Tea-Party type named Chip. He made a comment about how the mainstream media was lying about this or that, and I said, “Chip, you don’t even read the mainstream media.”
He replies, “Yes I do, I go to Drudge every morning.”
You just reminded me of that.
These are not mutually exclusive, but I understand what you are saying.
The reason for this is that libertarianism is based from the first principle of non-aggression. Democracy is largely arbitrary when it comes to aggression: popularity directs the aggression, not ethics (although ethics certainly weighs in on the popularity contest). Property rights, on the other hand, are perfect for dealing with aggression. Property, properly understood, is a set of legal forbearances others must observe when dealing with another person or that which that person has legitimate claim on. So basically non-aggression (the libertarian first principle) is best understood in the context of property rights.
And while there are notable exceptions (Hoppe, ancaps), the majority of libertarians prefer democracy as the most legitimate manner of aggression.
I can’t say much about modern European libertarians, but some European proto-libertarians felt property to be a good as well, rather that the accumulation of capital made possible by government monopoly and fiat to be the evil.
Proudhon contrasted the statements “Property is Theft!” and “Property is Freedom!” to help distinguish the line between legal property and moral property.
American libertarians since the 1970s have tended to be very weak on distinguishing between the two, however.
There was a time when Murray Rothbard was saying that government backed businesses and corporations should be turned over to the workers and saying that the abolition of slavery was unfinished as he explained libertarian property rights:
http://murrayrothbard.com/Confiscation_and_the_Homestead_Principle.html
Personally, I’d really like to hear what the free-market incentives against child prostitution and slavery are. Because I don’t think there are any.
You have to feed slaves?
Not unless it’s profitable to do so.
I could direct you to some libertarian writing on the subjects of child rights and slavery if you would like. Those are two gray areas that libertarians argue over a bunch since they do not fit neatly into libertarian ethics.
I would point out that no libertarian would support child prostitution and aggressive slavery (I say aggressive because the relationship between self-ownership and slavery is a bit controversial: can someone who possesses ownership of himself transfer away those rights) even if the free market made it profitable. The libertarian market is based on voluntarism and contract fulfillment: slavery and child exploitation don’t apply to a free market.
Yes indeed, who can imagine how the erosion of the Warren Court’s 4th Amendment rulings would lead to rogue police breaking down citizens’ doors in midnight raids? Bork’s views on search and seizure were too reflexively pro-cop for the NRA (cite); you think Kennedy was wrong about that one?
The “cite” there doesn’t actually cite anything — I mean, it links to a book, but the book cites no sources in support of its claims about the NRA. Here’s a more likely explanation: the NRA didn’t endorse Bork because Bork didn’t endorse the NRA’s view of the second amendment, and the NRA has always been a single-issue organization, not a “conservative” organization.
Burned! I guess Steve’s argument will be merely reduced to rogue police breaking down doors in midnight raids!
The “cite” there doesn’t actually cite anything — I mean, it links to a book, but the book cites no sources in support of its claims about the NRA.
Actually it does, on page 351.
Each of those points was answered in response to Nieporent’s comment under the original blog post.
Ladies and gentlemen of the jury, it is true that my client hates children. And it is true that he was seen driving around the school on multiple occasions.
But at no point before or after he drove his car into that crowd of schoolchildren did my client specifically state he intended to run over those specific children with his car. Therefore you should find him not guilty.
Implausible deniability at its finest.
Wait, you’re doing it wrong! You are attempting to introduce facts and evidence into an argument with a “conservative” thinker. Never get too far with that whacky idea! You just have to shout louder than the other guy, and get invited on to Faux Snooze.
Everyone who thinks that Potts might be a ruse by the proprietors to drive up comment participation and page count, please raise their hands.
Have Spoof, Will Travel.
Poe’s Law, Libertarian Edition?
Bonus Poe.
Actually I think he is a stalking horse, a fake conservative/libertarian, who is here to ask questions to flesh out the poster’s POV- a random reader who comes across this post, will see his questions and responses and (if open minded) inevitably conclude that hey Kennedy was right about Bork.
Because it’s been so hard, historically, to attract actual obtuse right-wing trolls to liberal blogs.
It astonishes me that people are so ignorant of their own history that they would not know anything about these things. Griswold v Connecticut. Roe v Wade. No knock policy, reinstated in 2006. Voting rights act. The Saturday Night Massacre.
People were not standing on street corners waving signs in opposition to his appointment because he was a conservative. They did it because they knew he would do precisely what Roberts and Alito have done and will continue to do. Reinterpret the Constitution to strip people of individual rights.
Including the ones specifically enumerated in the Constitution.
Later this week, Bork apologists attempt to explain that when their man wrote, “the fossil record is proving a major embarrassment to evolutionary theory,” he was actually offering a trenchant critique of Ted Kennedy’s behavior at Chappaquiddick.
FTW!
Where you and I see the fossil record, Bork sees only an inkblot.
“I used to be a classical liberal, but ever since my failed Supreme Court confirmation vote …”
You lie! Because it’s absurd to think that Bork would have had time to personally close the courthouse doors on “millions” of citizens’ fingers and also perform his duties as a Justice.
Even if he did his finger-crushing in the evenings from, say, 5-8 every weekday night for 50 weeks a year (and you know they don’t work that many weeks), crushing one person’s fingers every minute, he’d only have time to close the doors on 45,000 citizen’s fingers every year. At that rate, it would take him 5 years to crush even one million citizens’ fingers. I know he’d have a lifetime appointment, but he’d only have had time for less than 5 million finger-crushings by now, and then you have to consider the lack of any mechanism to coerce citizens to step forward for the crushings, plus that he’s kind of old and would never have kept up the pace I estimated.
Therefore, I am enraged by Chappaquiddick.
he’d only have time to close the doors on 45,000 citizen’s fingers every year. At that rate, it would take him 5 years to crush even one million citizens’ fingers
Did you use McArdle’s Special Libertarian Calculator? 45,000 X 5 = 225,000. 1,000,000 people crushed would take 22.22 years.
I blame broad interpretations of the Commerce Clause.
Yes. Yes I did.
“Tough and uncharitable?”
This wasn’t eliminationist rhetoric. This wasn’t even ratfucking and certainly wasn’t philosophizing with a Gutta-percha cane on the House floor.
Explain to me why is it necessary to hedge on this? Are we supposed to care about Bork’s feelings?
When someone that conservative is in line for a position that powerful, when he is that spectacularly authoritarian and reactionary, we aren’t doing our jobs if Mrs. Alito is the only one crying.
Kennedy’s speech should be celebrated without reservation and liberals should demand a higher profile for this sort of rhetoric. I know Jim Webb has a campaign coming up soon.
I don’t think “tough” is an insult.
I personally like the strawman extreme environmentalist who might want to force women to have backalley abortions…..
Well, “the consequences that would flow from Robert Bork being the median vote on the Supreme Court” would not ordinarily be described as “Robert Bork’s America.” The latter rhetorical flourish sounds a lot more like a description of the policy outcomes Bork would allegedly favor.
That having been said, your reading of my words is “transparently wrong,” as I too was talking about the consequences of Bork being on the Court. You/Kennedy either cite consequences that would not have happened at all, or writings of Bork’s from decades earlier that he himself no longer supported, as evidence of Kennedy’s claims.
Would Bork have voted to overturn Roe? Yes, I think that’s pretty obvious. Would that have ‘forced’ women to get illegal abortions? They could have, you know, not.
(1) He had backed up from that years before his nomination;
(2) Even if he hadn’t, were there four other votes on the Court for that “extremely narrow conception”? No, so Kennedy was wrong about the “consequences” of Bork’s confirmation in any case; and
(3) I don’t think someone who supported the censorship of political speech really had much leg to stand on in criticizing someone’s support for free speech. I admit that nude dancing is an important constitutional value, but I don’t quite think that it carries the same constitutional weight as advocating the election or defeat of a congressional candidate.
(1) He had backed up from that years before his nomination, too;
(2) Even if he hadn’t, were there four other votes to declare the CRA unconstitutional? Obviously not, so Kennedy was wrong about the “consequences” of Bork’s confirmation in that case, too.
Which “narrow reading” do you refer to? Can you cite any actual cases with this “narrow reading”? Would it have allowed “rogue police officers to break down citizens’ doors in midnight raids”? (Were there four other votes for this bizarre formulation?) He did disclaim a constitutional right to privacy — not a right to privacy — of the sort found in emanations and penumbras, but that had nothing to do with what Kennedy claimed.
Again, no citations.
Really, if Kennedy had just said, “Bork would overturn Roe,” he would have been accurate, but that wouldn’t have been nearly as hysterical or unfair.
Would Bork have voted to overturn Roe? Yes, I think that’s pretty obvious. Would that have ‘forced’ women to get illegal abortions? They could have, you know, not.
So, you’re arguing that it’s off-limits to consider the inevitable consequences of laws? I guess we’re giving up the pretense that you’re a libertarian as opposed to a standard-issue conservative Republican. Anyway, it’s entirely fair to point out what the consequences of Bork’s constitutional (and, in this case, policy) preferences would be.
As for your broader point, the fact that many of Bork’s stated positions were so radical that they wouldn’t have gotten more votes in the Court is a confirmation rather than a contradiction of Kennedy’s point. If Jimmy Carter had nominated Duncan Kennedy to the Supreme Court, would you consider it illegitimate to criticize his views because his most controversial ones wouldn’t attract a majority? This is silly. Indeed, by your standards, it’s only nominees with mainstream views who can be fairly criticized.
Indeed, by your standards, it’s only nominees with mainstream views who can be fairly criticized.
Well put.
You said that Kennedy’s point was that these things would be the consequence of Bork’s nomination. Now you’re saying that the fact that nobody supported these positions somehow confirms that these would have been the consequences of Bork’s nomination?
I don’t think it’s illegitimate to criticize anyone’s views. I think it’s illegitimate to say that those views will lead to X when in fact they won’t lead to X — especially when the person doesn’t actually hold those views anymore, and one is falsely implying that the person still does.
There is simply no sense in which “In Robert Bork’s America, blacks would sit at segregated lunch counters” could be interpreted in 1987 as accurate.
You do know what a counterfactual argument is right?
If Lincoln hadn’t won the 1860 election, then the South wouldn’t have seceded and so on. So if Bork had led a majority of the Supreme Court to declare the CRA unconstitutional back in the ’60s, then large parts of the South would remain segregated.
If Roe v. Wade was overturned or never implemented, the right to a safe and legal abortion would be eradicated. Such an option might exist in many states but the right would be gone. It’s important that Supreme Court justices have their head in the right place concerning the rights and liberties of ordinary citizens. Unfortunately, it appears there is a majority on the Roberts court that shares Bork’s vision.
Fair enough (*), but what did that have to do with Bork’s nomination in 1987? Bork wasn’t being nominated in 1964, and the constitutionality of the CRA wasn’t on the table in 1987. And even if it somehow came up, Bork changed his mind on the issue in the intervening time.
(*) Which doesn’t mean I agree with the counterfactual, but it’s a separate debate not worth having now.
but what did that have to do with Bork’s nomination in 1987?
His opposition to civil rights suggest to me some serious questions about his judgment, both constitutional and moral. He is interviewing for a job, in which his primary duty will be to rule on questions of constitutionality. If he has a long history of screwing up badly on constitutional questions, that seems like a good reason to consider not giving him the job, irrespective of the salience and currency of the specific screw-ups.
Beyond that, let’s remember that the person who nominated him kicked off his campaign with a speech in Philadelphia, Mississippi where he campaigned on state’s rights. It would be reasonable to question the judgment of someone who would do that, and to therefore wonder about his nominees, particularly ones who shared a troubling history on civil rights issues.
“You said that Kennedy’s point was that these things would be the consequence of Bork’s nomination. ”
Read again. He said they’re a consequence of Bork’s views being the median vote on the Supreme Court — ie, they’re the consequence of “Robert Bork’s America.” Kennedy was describing not a country with Bork on the court, but a country that followed Bork.
“There is simply no sense in which “In Robert Bork’s America, blacks would sit at segregated lunch counters” could be interpreted in 1987 as accurate.”
That is false. It’s true in the sense that, if Bork’s view of what’s constitutional were the prevailing one, segregation would be legal.
The problem is that Bork is an asshole with wicked, deranged views, and people like Nieporent have to lie about the Borks on their side in order not to appear to be wicked, deranged assholes. Hence all this strained interpretation.
You are arguing with someone who honestly believes that segregation would have ended of its own accord without Government intervention-
such belief is delusional, but I’ve read enough of DMN’s blogging history that I’m pretty sure it’s an honest belief-
in any event, arguing with someone who olds such a view is pointless
I said in 1987. Your talk of “Bork’s view of what’s constitutional” wasn’t Bork’s view in 1987; it was Bork’s view decades earlier.
As for the rest, actually, I think Bork has since proved himself to be a nutjob — though not for the reasons Kennedy claimed — and I don’t consider him “on my side” at all. (And I didn’t at the time; I was your standard knee-jerk liberal in those days.)
One looks forward to the conversion story with breathless anticipation. Does it involve Chappaquiddick or maybe the reading of Burr? Or some snarky librul at some Cambridge cocktail party?
Failed romance?
I’d give it up at this point, Scott. David and Brad aren’t really arguing with you at this point.
They’re DEBATING you. Meaning that rather than trying to actually legitimately cut to the heart of a tendentious issue on which they are pretty sure they’ll lose, they’ve resorted to hitting you from the edges; arguing semantics and phrasing and little points of order and hoping that they can win on points if they distract enough people from your stronger core arguments.
It’s kind of impressive in a way. Like that thread on DADT over at ObWi about a week and a half ago.
They’re
DEBATINGtrollingyouus.Fixed for more accurate description of the general foolishness of the deliberate “forced” misreading, as well as my own willingness to get drawn in.
Awww, but that’s why we love you, Mal.
I don’t actually think David is a troll given his posting history. Brad I’m less sure about, there’s something about the usual flow of his back and forth which is predictable enough to me that it says he’s deliberately pushing buttons and stirring things up while simultaneously crafting a persona which makes it believable.
In particular it’s almost gotten to the point where I can look at a thread and go ‘okay, at THIS point he’s going to deliberately misread something, at THIS point he’s going to demand we cite sources, and at THIS point he’s going to simply jack the thread away from a point he’s losing on and towards another perceived rhetorical chink.’
David sometimes does something unexpected; so did The Donalde, as a matter of fact, back when he got involved in threads regularly. Brad stopped surprising me after like three weeks.
Or? It could be that I’m over-thinking this way too much.
Or? It could be that by discussing them as if they were not actually present, I am counter-trolling.
Or? NIXON.
I don’t actually think David is a troll given his posting history. Brad I’m less sure about
I don’t think they are always trolls, but this thread shows they are both willing to behave like trolls when it suits them.
Brad stopped surprising me after like three weeks.
I don’t know. I like Brad more, but he is more willing to tell whoppers that I find surprising. I mean, it really was only a month ago that he was insisting that I knew nothing about True Libertarianism because No True Libertarian would ever work for the hated Fed, and then yesterday he said this. I assume with Brad it is a short-term-memory-loss-stereotype thing, rather than anything deliberate, but it really does make the debate unpredictable, and not in a good way.
Or? NIXON.
McCLOSKEY.
You are being a bit of a bastard about this Alan Greenspan stuff.
I challenged your assertion of what I said, and even though you admit you can’t go back and check, you keep repeating your charge.
I went back and looked and here is what I had stated:
The comments are here.
I explicitly noted that I was saying that he wasn’t a principled libertarian, but could still be defined as a libertarian loosely.
If you want to argue that Alan Greenspan is a principled libertarian, you are more than welcome to. I disagree.
If you want to argue that libertarians lose their principles when they get power, go for it. I agree. That’s why I don’t vote for them.
But you should stop misrepresenting my words.
I am terribly sorry I failed to properly distinguish when you were talking about principled libertarians, “close to” libertarians, loose libertarians, Galtian overlords, Rush fans (“2112″ through “Moving Pictures”, inclusive) and Heinlein wannabe’s.
I do not know how I possibly misconstrued
as implying Greenspan was not a libertarian, and apologize for not recognize the subtle distinctions implied.
Next thing you know, I might claim to be genuinely curious how Bork was going to personally force women to get back-alley abortions.
Nah, nobody could mis-read that badly. And certainly nobody who did could ever have the chutzpah to accuse others of misrepresenting their writing.
Three differences here:
1. I didn’t misread you or Scott or Kennedy. Kennedy’s statement was bullshit, a statement that borrows more strength from rhetorical flourish than from truth. It is telling that Kennedy would have been equally as truthful if he had said “Robert Bork’s America is a land in which women would be prevented from having back-alley abortions,”
2. When I am corrected concerning some way I have read someone’s opinion, I drop it. You continue to be an ass.
3. I haven’t misread someone and then gone to multiple threads and used my miscomprehension to publicly analyze and offer up opinions of another person’s competency in a belittling manner.
Snark if you want to at my whining, I’m relentlessly self-assured, but wit is no substitute for decency unless you prefer the company of assholes.
It is telling that Kennedy would have been equally as truthful if he had said “Robert Bork’s America is a land in which women would be prevented from having back-alley abortions,”
Change abortion to alcohol and you will see the flaw in your argument. Wishful prohibition may have unintended consequences. This is well-documented with respect to abortion. Also, alcohol.
I understand this, and I believe even full-term abortions should be legal. I don’t agree with Bork on much of anything it seems, let alone abortion.
I’m just saying that Kennedy is making his argument with connotation and not facts.
For example:
In Barack Obama’s America, citizens are forced to make back-alley drug deals with criminals.
In Barack Obama’s America, citizens are forced to make back-alley drug deals with criminals.
As political rhetoric I don’t think it would be very effective, but it’s not untruthful.
In Barack Obama’s America, citizens are forced to make back-alley drug deals with criminals.
You say that like it will expose our hypocrisy! On the contrary, it demonstrates our consistency. Progressives are mad at Obama for failure to do enough to end the war on drugs. We still hold it against Clinton, too.
So NOW do we get to say Bork’s America = back-alley abortions?
Scott, I need some clarification:
While discussing the health insurance mandate, I was ridiculed for suggesting that one consequence of the reading necessary to justify the mandate would extend congressional power until it included forced abortion and eugenics programs.
I was ridiculed along two lines:
1. There was no way that something like that was going to happen even if it were legally possible(to which I say lets wait 40-50 years before deciding what can and can’t happen within congress as a consequence of the reading).
2. There were other protections that would have stopped it.
So let me ask you this:
1) If the Supreme Court had accepted Bork’s views on the Civil Rights Act in the context of his support of the Brown v. BoE decision, do you think “Robert Bork’s America” (whatever that means) would have had open, noteworthy segregation? Would another solution have not presented itself, and would other protections not come into play that suited Bork’s opinions?
2) Do you honestly think that the opinion Bork expressed and then backed away from really would have resulted in those last four scenarios?
And most importantly:
3) Do you honestly believe that Bork didn’t feel there were any constitutional protections from those scenarios, with the exception of the back-alley abortion one?
It’s pretty amusing that you’re deploying “could/would” arguments both to assert that:
(a) actual history and Bork’s actual positions in relation to that history don’t tell us anything about the world that he would help to create,
AND
(b) the individual mandate is a slippery slope to totalitarianism, illustrated by ridiculous counterfactuals, despite both the actual presence of actual constitutional protections against those totalitarian counterfactuals and the complete absence of any such occurrence in the historical record of those countries that have implemented (vaguely) similar systems.
“But it COULD happen!” should be the motto of every single American libertarian. It’s useful in almost every single circumstance.
I was not arguing either a) or b), and “But it COULD happen!” is what Scott is saying, not me.
Allow me to remind you of the value of the walks-back* of conservatives applicants: not much.
* sweet plural
[...] the national debt. After all, in 1987 a bipartisan majority rejected a Supreme Court nominee with views so unpopular no subsequent Republican nominee has been willing to defend them in a clean, timely up-or-down [...]