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Leave Robert Bork Alllooooooonnnnnne!

[ 92 ] October 22, 2011 |

You know how Tom Freidman or Matt Miller submits the same column about how we need a “radical centrist” pain caucus third party daddy to save us about twice a month?   Not to be outdone, Joe Nocera is approximately the eight millionth pundit to write the same lazy column about how accurately describing Robert Bork’s views is the most uncivil thing in politics that there absolutely ever was.  That he did it on the same week that Bork reminded us for the umpteenth time that he is not, in fact, the reasonable moderate conservative of Nocera’s fantasies makes it extra special.

I’ll have a longer piece about the “Borking” nonsense later this week, but a couple side points.   First, this bit was particularly infuriating: “Whatever you think of these views, they cannot be fairly characterized as extreme; Ruth Bader Ginsburg, among many others, has questioned the rationale offered by the court to justify Roe v. Wade.”    Yes, Ginsburg thought that Roe should have rested on gender equality rather than due process grounds; Bork thought that Roe (and indeed the entire concept of an implied right to privacy) was as bad or worse than Dred Scott.   So, basically, they agreed!

As for the idea that Bork’s principled belief in “judicial restraint” and “originalism” would have “made him a restraining force,” well, if you haven’t spotted the sucker in the first half hour you are the sucker.  But it does remind me that Bruce Ackerman’s classic critique of The Tempting of America is now online.   The whole thing is must-reading if you’re interested in the Bork myth. But a couple relevant excerpts:

For starters, this book fails to cite, much less discuss, the contribution of any seminal twentieth-century interpretation of the Founding or Reconstruction. Bork’s ignorance of the secondary literature is ecumenical-he fails to cite historians who might support him just as he fails to confront those who make his confident judgments seem problematic. Perhaps this ignorance might be forgiven the heroic autodidact, who immerses himself in the original sources without distorting his vision by consulting conventional
authorities. But Robert Bork is no Hugo Black, communing with the Founders during long nights at the Library of Congress. His rare references to the original sources are restricted to old chestnuts served up by the academic theorists he condemns for their ahistorical methods. He gives no indication, for example, that he has pondered the differences between James Madison’s performance at the Virginia Ratifying Convention and James Wilson’s at Pennsylvania’s; or that he has thoughtfully considered the relationship of Charles Sumner’s Senate speeches to Northern opinion during the ratification of the Fourteenth Amendment. Indeed, he manages to write a 400-page book in praise of the Framers without ever finding it necessary to cite the standard edition of Madison’s Convention Notes or a single page from the Congressional Globe containing the debates of the Reconstruction Congresses.

[...]

The puzzle here is why Bork should find the text [of the Ninth Amendment] “enigmatic.” It seems, almost preternaturally, to be written with him in mind. What Bork is up to is precisely to use “the enumeration in the Constitution, of certain rights” to “disparage” the idea that there are other constitutional rights of fundamental importance. I especially admire the Framers’ choice of the word “disparage.” I can think of no better word to describe Bork’s general tone.

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  1. efgoldman says:

    That Robert Bork ever made it to a federal appeals court, let alone a SCOTUS nomination, is an abomination.

    FSM knows, my home state of MA has its faults, but judicial nominations, especially to the appeals and Supreme Judicial courts aren’t among them. No elections – I think, and will always think, that elected judges are an abomination. There is an independent judicial nominating commission (since 1975). Granted that it is created by executive order, rather than by legislation, so some future TeaTard governor could abolish it, but the shitstorm to folow probably wouldn’t allow it.
    http://www.judicialselection.us/judicial_selection/index.cfm?state=MA

    • efgoldman says:

      I meant to conclude: I wonder if the same thing could be done by executive order at the federal level.

      • Snarki, child of Loki says:

        Of course it could be done: the executive proposes judicial appointees, and could (by executive order) hand over the business of selecting candidates to a commission.

        Hell, he could hand over selecting candidates to the NYT drama critic. Have about the same chance getting confirmed by THIS senate, so why the hell not?

      • Brian says:

        When EF Goldman speaks, people listen. Sorry, just had to. And yes, judicial elections are sub-optimal, to be charitable.

        • efgoldman says:

          When EF Goldman speaks, people listen.

          Naah, I just happened to get in first because everybody else was either watching football or our raking or apple picking or something, on a Saturday.

  2. Murc says:

    You know, I sort of find the idea that the Senate should confirm any judge sent to it who is ‘qualified’ in a narrowly technical sense to be sort of repugnant.

    These aren’t cabinet Secretaries who, worst case, would have to be re-nominated every eight years. These are people who, since Congress has also refused to exercise its right to impeach judges, will sit for life. If you don’t like how they’re going to rule, it doesn’t matter how mainstream, or not mainstream, their views are. You’re allowed to vote against them. You might be WRONG, but it’s not an illegitimate exercise of power.

    Senate Democrats didn’t like how Bork was going to rule, and they didn’t tell any lies about him, his views, or the practical effects thereof. That makes their rejection of him a wholly legitimate part of our national governing process.

    Frankly, the Bork nominations pernicious legacy isn’t a lack of ‘civility’ or bipartisan comity; its that judicial nominees started lying to Congress about their beliefs and Congress started letting them, and nobody seemed to care.

  3. sleepyirv says:

    The Democrats actually allowed the Bork nomination to get to vote? Amateurs! You’re support to threaten a filibuster and never get close to an up and down vote- might lose that. And a Supreme Court Justice? That’s actually important. You should go after Undersecretaries of Commerce.

    • commie atheist says:

      If the soon-to-be minority Democrats in the Senate have not learned the lessons of the last three years, and apply them when Majority Leader McConnell takes charge, then they deserve to go the way of the Whigs. Either that or, you know, they could institute some reforms, while they still have the majority.

      • What would stop the new Republican majority from undoing any reforms?

        • Murc says:

          Why would an incoming majority want to undo reforms aimed at increasing the ability of the majority to govern?

          And, commie atheist; Reid actually promised not to return to examining reforming the filibuster until after the 2014 elections. At the earliest. So there’s that.

          • Why would an incoming majority want to undo reforms aimed at increasing the ability of the majority to govern?

            That’s Point 1.

            Point 2: Why would a reactionary party devoted to maintaining the status of the most powerful give up a tool that is most effective at stalling progress?

            Point 3: Why would a group of Senators give up a tool that empowers individual Senators?

            • Murc says:

              Those are points for why their wouldn’t be Senate reform in the first place, tho, not for why it would be undone by an incoming majority whom it materially benefits after they’d already happened, tho, aren’t they?

              I mean… after we got rid of the ability of tiny groups of Senators to filibuster (it takes forty now; at one point you could do it with as few as two, if they were willing to put in endless twelve-hour shifts spelling each other) its not like there was a giant stampede to roll back that, was there?

            • Timb says:

              Because their movement will demand it. The tea baggers have been angry at the Senate since 1994

      • Scott P. says:

        Instituting changes to the rules requires a 2/3 majority, except at the start of a new Congress.

        • mpowell says:

          Well, this is kind of an odd thing. Nobody else in the country has to respect Senate rules. So if 51 Senators say, “we’re passing this bill”, that bill becomes law. It’s only a Senate rule that a 2/3 vote is required to change the rules, but a judge isn’t going to care whether Senate rules were followed if 51 Senators are willing to sign their name to a bill.

          • efgoldman says:

            No judge, anywhere at any time, is going to take on the internal rules of either house.

          • Murc says:

            a judge isn’t going to care whether Senate rules were followed if 51 Senators are willing to sign their name to a bill.

            That’s absolutely not true. Look at Wisconsin, where whether or not a law was passed following the proper rules of its legislature was instrumental in determining if their union-busting bill became law, and in which multiple judges ruled on it.

            Also, while nobody else in the country HAS to do anything, some of us might CHOSE to do. The Senate is a lawmaking body. It should conduct its business consistent with the rule of law. One of those being that it has the power to make its own internal rules.

            • R Johnston says:

              Uh, no.

              Passing a bill is irrefutable evidence that the Senate has judged its own rules to be followed, and the Senate is the final and only arbiter of its own rules, excepting only rules specified in the Constitution.

              • Murc says:

                Passing a bill is irrefutable evidence that the Senate has judged its own rules to be followed, and the Senate is the final and only arbiter of its own rules,

                Why does this apply to the Senate and not to the Wisconsin statehouse? My understanding is that the Senate rules have the force of law; that, in fact, they ARE laws.

                While you are correct that passing a bill is irrefutable proof the Senate has judged its own rules to be followed, they have to actually pass a bill for that to happen. And while the final vote on a bill always has to be majority decided, the road to getting to that final bill can have as many asinine rules as the people writing them want, and if you don’t follow them, the bill wasn’t actually passed.

                • efgoldman says:

                  Why does this apply to the Senate and not to the Wisconsin statehouse?

                  Without actually looking at either document, I think the WI case was a violation of a *statute*, not a procedural *rule.*

              • Passing a bill is irrefutable evidence that the Senate has judged its own rules to be followed

                The phrase “passing a bill” is doing an awful lot of work in this argument, which is about when a bill has actually been passed.

                If Harry Reid holds the gavel and declares a bill to have been passed by acclamation, and then a Republican objects, and Reid makes a rude gesture and directs the Clerk to send the “passed” bill on to the White House, has that bill been passed?

          • I wonder.

            The Constitution explicitly empowers each house to develop their own rules. Is that not a binding requirement, and endorsement of the legitimacy of whatever rules have been adopted?

  4. SKapusniak says:

    *Sigh*

    Archibald Cox, Nixon, The Saturday Night Massacre. Bork as the guy who fired the Special Prosecutor, after both his bosses refused to do so and were either fired or resigned.

    …Could someone clue me in as to why mentioning above seems to be taboo for any post discussing Bork whether pro or anti, when it speaks directly to suitablility to be a Justice on a court tasked with being the final arbiter of what is Constitutional, or indeed to be a Justice on any court at all, and is always left to we in the comments to bring it up?

    • Hurling Dervish says:

      Both Archibald Cox and Elliott Richardson urged Bork not to resign. They said that someone must remain in office to carry on the duties of government, and they were pleased when Bork agreed to fire them rather than resign.

      • Rarely Posts says:

        I am very skeptical of this story. I’ve seen in on several websites, including wikipedia, but I’ve never seen citations to any contemporaneous sources that support it.

        It seems inconsistent with other accounts of the actions taken by Cox and Richardson. For example, Richardson did resign, he wasn’t fired. As to Ruckelshaus, the White House at the time said he was fired, but he said he resigned. Also, Cox’s contemporaneous statements seemed to object to being fired; I don’t see where it suggests that he was glad to be fired.

        It also just doesn’t make sense to me. It sounds far more like an after-the-fact attempt to rewrite history to make Bork look good.

        Finally, Bork’s actions were objectionable regardless of Ruckelshaus and Richardson’s opinions. For the President to interfere with the investigation that he specifically authorized into the President’s actions is really problematic, particularly given that Cox’s investigative conduct seems to be appropriate. Imagine how the Right-Wing would have reacted if Reno had fired Starr, and if anything, Cox’s conduct was far, far more appropriate than Starr.

        • (the other) Davis says:

          I’ve seen in on several websites, including wikipedia, but I’ve never seen citations to any contemporaneous sources that support it.

          While I recognize that this is in no way authoritative, according to one of my law professors (who clerked for both Bork and Scalia, but whom I nevertheless greatly respect) this is pretty much how Bork recalls the story himself.

          • L2P says:

            He also recalls that he was viciously maligned by Congress when Congress . . . stated EXACTLY what his views are.

            Bork is a hack, and I think we can toss out “how Bork recalls the story himself” if Bork’s memory is that he was an awesome paragon of non-partisan idealism, contrary to ALL evidence to the contrary.

            • T. Paine says:

              This is how one of my law professors, who was in DOJ at the time (and went on to hold an SES position until he quit/retired under Bush II), told it as well. “Someone needed to be there to run things.” The fact that Bork probably relished the opportunity to do so doesn’t discredit the story.

              • Rarely Posts says:

                I have heard a different version of events from other people who worked at DOJ at the time, though none of them claim to have been present for all of the conversations between the relevant actors.

                In any event, it’s not true that DOJ (or any government agency) cannot run without political appointees. They do run with career people between administrations, and DOJ could have continued to do so. Moreover, the only “crisis” was the “crisis” that Nixon did not want to be investigated by a special prosecutor.

  5. c u n d gulag says:

    And I had such high hopes for Nocera.
    Well, not really, but I expected better than I’ve gotten.

    Nocera’s a few years older than me, and even without checking, I can remember how big the Bork nomination was, and how awful a choice he was for a lifetime position, and how important blocking him was. This column makes it seem like Joe was in a box during those Reagan years.

    Take one look at Bork from those hearings. You can see by his haughty, ‘I’m smarter and better than all of you put together,’ arrigant prick demeanor that he would be spending the rest of his life totally enjoying undoing decisions that were more Liberal than Dred Scott. And anything the Warren Court passed would be #1 on his hit parade.

    Nocera makes him seem like he’s part Santa Claus, and it was the terrible Liberals fault for starting this mess because we didn’t want to give a vicious sexist/racist a lifetime position on the SCOTUS – largley because the quota for that position was aleady filled by William Rehnquist.

    And while we were able to keep Bork off, Clarence Thomas is with us for the duration of his life, being the 5th vote, just so he can ‘stick it’ to anyone who ever dared infer that he was a traitor to his race and the economic class he was born into. And that this pathetic man, instead of helping others, relishes in afflicting those already afflicted. Especially if they’re like him. He’s a vile poster-child for self-hatred.

    Mr. Nocera – and Bork makes Thomas look like Thurgood F’in’ Marshall.

  6. Incontinentia Buttocks says:

    The standard “Borking” narrative is so wrong it makes the antisemitic Dolchstoßlegende about Germany’s losing WWI look like good history.

    Not to sound like a broken record on this but…

    1) Bork was an extremist, for all the reasons outlined above.

    2) The bipartisan Senate rejection of the Bork nomination was simply the Senate doing its constitutional job (and it would have been, incidentalally, even if Bork had not, in fact, been an extremist).

    3) Our politics has never been free of incivility. But to clame that our current cycle of incivility (let alone Senatorial dysfunction, of which the Bork nomination vote was not an example) started with Bork is to manifestly forget the ’70s (..and the ’60s and the ’50s). Richard Nixon (in whose service Bork earned his stripes) is a key figure here…but Joe McCarthy, anyone?

    I could go on.

  7. Robert Bork: First Amendment Champion.

    It appears as if almost everything within contemporary culture possesses the capacity to offend Bork. He attacks movies for featuring “sex, violence and vile language.” He faults television for taking “a neutral attitude toward adultery, prostitution, and pornography” and for portraying homosexuals as “social victims.” As for the art world, most of what is produced is “meaningless, uninspired, untalented or perverse.” He frets that the “pornographic video industry is now doing billions of dollars worth of business” and the invention of the Internet will merely result in the further indulgence of “salacious and perverted tastes.” When it comes to music, “rock and rap are utterly impoverished … emotionally, aesthetically, and intellectually.”

    More to the point, Bork is not content merely to criticize; he wants the government to do something about it. “Sooner or later,” he claims “censorship is going to have to be considered as popular culture continues plunging to ever more sickening lows.” So committed is he to this cause that he dedicated an entire chapter in his 1996 book Slouching Toward Gomorrah to making “The Case for Censorship.” In it, he advocates censoring “the most violent and sexually explicit material now on offer, starting with obscene prose and pictures available on the Internet, motion pictures that are mere rhapsodies to violence, and the more degenerate lyrics of rap music.”

    When asked by Christianity Today about how he would decide what should and should not be censored, Bork announced: “I don’t make any fine distinctions; I’m just advocating censorship.”

    • c u n d gulag says:

      “…pornographic video industry is now doing billions of dollars worth of business” and the invention of the Internet will merely result in the further indulgence of “salacious and perverted tastes.”

      Can you imagine if he was nominated and he and Clarence Thomas had to share the same desk or closet?

      Or the same PC and password?

      Now, watching THAT might have been worth all of the horrors.

      • NBarnes says:

        Nah, Bork’s a Straussian in good standing. He understands that the elect can safely access things that would be dangerous to leave in the hands of the proles.

    • efgoldman says:

      As for the art world, most of what is produced is “meaningless, uninspired, untalented or perverse.”

      Not to Godwinize the thread, but doesn’t this sound a lot like a certaain small, mustachioed ex-corporal, in Germany, in the 1930s?

  8. DrDick says:

    To Bork: To accurately portray a conservative, based on his own published opinions statements, as an extremist unfit for public service.

    Everybody knows that accurately and honestly portraying conservatives is completely off limits and has been for 30 years. To paraphrase the old campaign slogan about Goldwater (godfather of this insane clown circus), “In your guts, you know they’re nuts!”

  9. Brian says:

    I’m not fan of Bork, but from the perspective of a right-winger more inclined to what Bork would consider “judicial activism.” Bork would defer to the political branches & to the States even when (in my opinion) individual rights are at stake. He would, for example, likely have joined the majority in Kelo, a decision criticized by both the Right & Left, because it allows an alliance between big business & government to trample the rights of smaller businesses, or individuals. (Under Kelo, Walmart/Costco/Generic Real Estate Developer can team with your local government, to take your land.)

    But the question that Joe Nocera raised was not whether you disagree with Bork, but whether his views were no far out of the mainstream so as to be dismissed as a loony. If Bork was nuts, you should be able to cite something in one of his DC Court of Appeals decisions to substantiate it, but I’ve never seen anyone do it. (I understand that an appeals court is bound by precedent in a way that the Supreme Court is not, but still, an opponent should be able to find something in an opinion, concurrence or dissent revealing the crazy.)

    You’ve seen it many times before, but here’s what Kennedy said:

    “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, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy.”

    I think fair-minded opponents of Bork will concede that at least several counts of this indictment are flat-out false. I also think that many of the same people would tell you that it does not matter that Bork’s ascension to the Supreme Court was thwarted by a malignant slander, because Bork was wrong for the Supreme Court anyway. But that’s the same argument, in pattern, as the one that it does not matter if cops plant evidence, to secure the conviction of a guilty man. The reason we don’t want cops to plant evidence is because that general practice, if allowed, will secure the conviction of innocent defendants. And we don’t want political slander – “borking” – to be acceptable because it will destroy many worthy people, and cause many additional people we need to chose some other work besides service in the judiciary or political branches of government.

    • Malaclypse says:

      I think fair-minded opponents of Bork will concede that at least several counts of this indictment are flat-out false.

      Name two.

      • Brian says:

        Sorry it took me so long to answer. I’m glad you didn’t ask me to “name three” corresponding to the word “several.”

        1) The best example of a false statement is “rogue police could break down citizens’ doors in midnight raids.” There’s nothing that anyone has come up with showing that Bork has some kind of novel super-lax interpretation of the 4th Amendment that would make this statement remotely plausible. And if you look at the 4th Amendment jurisprudence of conservatives of Bork’s era who did make it to the Supreme Court (Scalia in ’86, and Thomas in ’91) you don’t anything like what Kennedy predicted. See cases such as Kyllo (2001) and – even more to the point – Wilson v. Arkansas (1995.)

        The second best is “doors of the Federal courts would be shut on the fingers of millions of citizens.” What does that mean? Are there millions of habeas petitions from prisoners? Millions of individuals seeking government legal/financial assistance re federal & State appeals (in which case, the door is not shut, if the government does not provide it)? The best interpretation is that Kennedy just invented this out of whole cloth.

        The other statements are rhetorical hyperbole taken to the nth degree and beyond:

        1) “segregated lunch counters”
        I guess this refers to the argument (which I haven’t heard from Bork) that the Commerce Clause justification of some civil rights laws does not hold water, but Bork – as a believer in judicial restraint – would never strike down a Congressionally enacted civil rights law.

        2) “forced into back-alley abortions”
        One way of referring to Bork’s view that abortion policy – pro or con – should be returned to the States.

        3) “writers and artists could be censored at the whim of the Government”
        Bork would permit censorship of porn.

        4) “schoolchildren could not be taught about evolution”
        Under Bork, curricular decisions would be a matter of state law, just as it is now. So it’s false to suggest that Bork thinks the Constitution and/or federal law could somehow be twisted to ban the teaching of evolution. The only tiny thread connecting that statement to reality is that in funding or other benefits, under a Borkian regime the feds could not discriminate against schools that have a religious character, so long as the teaching itself has a secular purpose.

        The Kennedy slander consisted or flat-out false statements, mixed with intentionally misleading statements, achieving the intended effect of smearing a man out of the Supreme Court.

        It’s fun to do, actually.

        My right-wing cabal friends certainly like smearing Lefties; we learned it from you.

        • Scott Lemieux says:

          There’s nothing that anyone has come up with showing that Bork has some kind of novel super-lax interpretation of the 4th Amendment that would make this statement remotely plausible.

          Except that he opposes the exclusionary rule, which would make midnight raids more likely and permit the state to benefit from their illegal behavior.

          The second best is “doors of the Federal courts would be shut on the fingers of millions of citizens.” What does that mean?

          That he, like most contemporary Republican judges, believes that the rules of standing should be narrowed for litigants whose claims he substantively disfavors?

          I guess this refers to the argument (which I haven’t heard from Bork) that the Commerce Clause justification of some civil rights laws does not hold water

          As you would know if you knew anything about the subject, it refers to the article Bork wrote opposing the Civil Rights Act on constitutional and policy grounds. The idea that Bork is a consistent advocate of “judicial restraint” is also ridiculous. He defended Bush v. Gore, for Chrissakes.

          One way of referring to Bork’s view that abortion policy – pro or con – should be returned to the States.

          Yes, and an accurate one. Also, overruling Roe would not send abortion policy back to the states. Basically every Republican member of Congress supports extensive federal abortion regulations.

          Bork would permit censorship of porn.

          His statements go far beyond that. He would permit censorship for serious works of literature as well as scientific works.

          Under Bork, curricular decisions would be a matter of state law, just as it is now.

          Except that under current law, states cannot ban the teaching of evolution or compel the teaching of creationism. Bork’s narrow views of the First Amendment would produce different outcomes that would include upholding bans on teaching evolution.

          So, you’re hitting .000. Thanks for playing!

          • Robert Farley says:

            For some reason, this conversation evokes memories of yesterday’s 45-2 Oregon-Colorado game…

          • Murc says:

            Except that he opposes the exclusionary rule,

            You’re far too kind here, Scott. Opposing the exclusionary rule makes you anti-4th Amendment. Period.

          • mpowell says:

            I breathlessly await Brian’s response. My favorite argument was the one that although Bork favors abolishing the exclusionary principle, he doesn’t support a super lax interpretation of the 4th amendment. Maybe he doesn’t; he’s just willing to invite lots of violations of it.

          • Brian says:

            I think there’s a theoretical possibility that 2 or 3 people might return to this thread a week later, so it’s for them that I give another reply, specifically about the exclusionary rule, and whether Bork’s scholarly opposition to it means he would gut the 4th Amendment (Kennedy’s “midnight raids” and all that.) BTW, I do appreciate that you engaged my answer substantively, rather than simply dismissing me because of my fundamentally differing views.

            Right after I entered my post, the thought occurred that someone might come back by citing Bork’s views contra Incorporation to the States of the rights upheld by the Bill of Rights, which – if sustained – would leave the States and their political sub-divisions free to violate the 4th Amendment with impunity. My answer to that reply would have been that Bork is not just a political conservative, but a judicial conservative, and that he would not overturn a precedent going back, arguably, to 1897, when the Takings Clause of the 14th Amendment was incorporated against the States in Chicago, Burlington & Quincy Railroad Co. v. Chicago.

            The same would go for the 4th Amendment exclusionary rule, which goes back to Weeks v. US (1914). Bork wrote law review articles, to his own peril, as he tried – and failed – to convince the Judiciary Committee of the difference between arguing from first principles in a theoretical article and deciding cases. It’s not remotely plausible that Bork would write a Supreme Court opinion allowing the evidential fruit of an illegal search because 3/4 of a century ago the Supreme Court got it wrong when it devised the 4th Amendment exclusionary rule.

            Examples of judicial conservatism, which, IMHO, apply to all political conservatives on the present Supreme Court with the exception of Justice Thomas:

            1) Justice Scalia, like Bork, thinks that as an original matter selective incorporation of provisions of the Bill of Rights via the Due Process Clause is wrongheaded, but when the right to bear arms in the 2nd Amendment was so incorporated in McDonald v, Chicago (2010), Scalia voted with the majority. At oral argument, one attorney argued for incorporation via the 14th Amendment’s Privileges & Immunities Clause, and Scalia retorted: “Why do you want to undertake that burden, instead of just arguing substantive due process, which as much as I think it’s wrong, even I have acquiesced in it?”

            2) Its generally known that conservatives – including Justice Rehnquist, who wrote about it – think that as an original matter, the idea that the Miranda warnings are mandated by the 5th Amendment is false. Yet while this precedent only dated back to 1966, a mere 34 later in Dickerson v. US (2000), Justice Rehnquist, writing for the court, upheld Miranda against a Congressional statute which purported to overrule it: “Whether or not we would agree with Miranda’s reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now…Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.”

            Finally, I would contest the idea that elimination of the 4th Amendment exclusionary rule would necessarily lead to the trampling of 4th Amendment rights. There’s a serious argument that the exclusionary rule is a judge-made doctrine, unsupported by the text & history of the 4th Amendment. But you know what else is a judge-made doctrine? The wide (but not unlimited) immunity against liability – both civil & criminal – given to cops & district attorneys who violate the 4th Amendment rights of individuals. Elimination of such immunity would deter police misconduct at least as much as the exclusionary rule, IMHO.

            As to Scott Lemieux’s other objections to my objections to Kennedy slander: You might be right. I have much to think about.

            And finally-finally: Someone said I’m a conservative. But I hope I’m a libertarian. And I like much of what libertarian Roger Pilon says about Bork’s views.

        • Hogan says:

          My right-wing cabal friends certainly like smearing Lefties; we learned it from you Dies, Nixon, McCarthy, J. Edgar Hoover, Agnew, etc. etc. etc.

          FTFY. You’re welcome.

    • Bill Murray says:

      I think fair-minded opponents of Bork will concede that at least several counts of this indictment are flat-out false.

      and which would those be? Bork was clearly against Griswold vs. CT, which was a basis for Roe V. Wade, he favored the majority imposing its will against a minority, he favored censorship and his rulings on standing favored business over people. Those pretty well cover everything in Kennedy’s statement

      • Scott Lemieux says:

        Don’t forget civil rights. Bork not only wrote a blistering attack on the policy merits and constitutionality of the Civil Rights Act, he was apparently instrumental in persuading the Republican candidate for president to oppose it.

    • Kelo didn’t stake out any novel positions or extend any powers. It just upheld existing law.

      It received a lot of attention because the Court could have rejected the existing precedents and implemented a new set of standards, but they didn’t. They just stuck with the status quo.

      • Scott Lemieux says:

        This is correct, and I have no idea why anyone thinks Bork would have voted with the majority.

        • Wait…what?

          Did you mean “minority?”

          Or are you saying you are very certain Bork would have voted to void the takings?

          • Scott Lemieux says:

            Yes. I think Kelo was correct, but I also think that Bork would not have voted to uphold the taking, because of course I think he’s an outcome-oriented reactionary, not an apostle of “judicial restraint.”

            • I actually liked O’Connor’s dissent better, and I was a practicing urban planner at the time.

              There has to be some criteria by which a court can review whether the claimed public purpose is sufficient, instead of just taking the word of the side that wants to carry out the taking.

              The court has put quite a bit of meat on the bones of “reasonable” when it comes to searches and seizures. They could have put some meat on the bones of “public purpose.”

  10. (the other) Davis says:

    If Bork was nuts, you should be able to cite something in one of his DC Court of Appeals decisions to substantiate it, but I’ve never seen anyone do it.

    And why would you think that? First, on the D.C. Circuit each decision is made by multiple judges, so he wouldn’t be required to produce an opinion on each case he’s on. Second, his law clerks were likely doing a significant portion of his opinion-writing (or reviewing what he did write), so it would have been trivially easy for him to remain silent about his extremist views.

    • (the other) Davis says:

      That was supposed to be a reply to Brian, but it somehow broke loose.

    • Rarely Posts says:

      Also, by the time a judge like Bork is on the Court of Appeals, they often start moderating their writing and positions for political advantage. Before they get the nomination, they often need to establish their conservative bona-fides and get attention (as Bork’s early, very conservative writings did). Once they’re a young person appointed to the Court of Appeals, they start moderating to survive future confirmation hearings for the SCOTUS.

  11. E. Rat says:

    It does sound absurd that an American judge would offer women the choice between their jobs and their ability to bear children, as Mr. Nocera writes. Of course, that it is absurd does not mean it isn’t what Bork offered women working at American Cyanamid.

    The comments on the op-ed are a nice tonic for the most part, though.

  12. Brian, exactly what about Kennedy’s charge is false?

    Bork would have opposed Brown v. Board of Ed, found the 65/65 CRA unconstitutional, not only opposed Roe v. Wade but also Griswald v. CT and look at my above post for his shaky free speech views.

    It’s not “slander” if it’s TRUE. I think any fair minded person would concede that Bork is an extremist.

  13. Bart says:

    Can’t understand why Mr No Sera didn’t allow comments.

  14. howard says:

    with the exception of the one bork defender here, i’d suggest that everyone else: a.) write a letter to the editor; b.) write to art brisbane.

    i have no idea whether jill abramson is any better than bill keller, but here’s a chance to find out, since what happened here, in my estimation, isn’t nocera’s fault: he doesn’t know what he doesn’t know.

    but an editor should have known….

    • efgoldman says:

      but an editor should have known….
      Don’t know nothin’ bout history…

      • howard says:

        very droll, efgoldman, and very true, but the minimum the editor-in-chief should know about nocera is: he comes from a business journalism background.

        why should he know anything substantive on the topic of robert bork court rulings?

        the odds are, though, that jill abramson is different from, but not better than, bill keller. the publisher, after all, hasn’t changed.

  15. Two thoughts. First, when I read Nocera’s column I was at a loss as to why this argument was being dredged up, one more time, at this late date. There can’t be that many people left who seriously believe that the Bork hearings were unfair, or conducted unreasonable, can there? I’d put it to Joe Nocera that this was just about the last time the process worked the way it should. Was this some sort of dog whistle?

    The real fruit of the Bork hearings– the chickens coming home to roost, if you will, was the Thomas hearing and confirmation. Right wing nuts cite that as a grave wrong comparable to the injustice they believe Bork was subjected to, but it doesn’t seem to be dredged up as often. Is that because Thomas was appointed, or is there some other reason that is too subtle for me to detect?

    • L2P says:

      Hmmh. There’s some difference between Thomas and Bork. Something I can just almost visualize. Something that theoretically doesn’t matter to conservatives, but seems to drive a LOT of their policies. Some fundamental difference that might, maybe, make Thomas just not as fun, on a deep-down emotional level they don’t like talking about openly, for conservatives to keep bringing up.

      As a small-world-ain’t-it note, my parents lived next door to Thomas during the confirmation. IIRC, he felt like he was getting attacked on a personal level, but Bork at least was criticized for his legal thought. That might have something to do with it.

  16. nanute says:

    I, for one,can’t believe Nocera came up with this idea on his own. I’d like to know who he asked for the opinion.

  17. Rarely Posts says:

    I just love that this post & thread epitomize so many of the core elements of conservative arguments (by Bork, the original columnist, and the commenters):

    1) Victim mentality on behalf of incredibly powerful and privileged person;
    2) Anger about liberals making effective and accurate political statements;
    3) Rewriting history to reflect current beliefs without any sources or evidence that person has read any of the relevant sources;
    4) Numerous unfounded assertions;
    5) Patient and careful disproving of unfounded assertions by others who actually research and read some of the relevant materials;
    6) Conservatives don’t change their mind about any of it, because they never cared about the facts anyway!

  18. Manju says:

    Ironically, Bork could only get 7 of 26 Southern Senators to confirm him.

    Of the 3 who voted against the 64cra (just going from eyeballing the wiki list: Strom, Byrd, Stennis) he got 1 to bite…none of whom had publicly repented by 1987.

  19. [...] have a piece up at Alternet about the myth of Robert Bork.   Nocera’s representative whining notwithstanding, the defeat of Bork wasn’t unprecedented, it wasn’t obstructionist, it was justified, [...]

  20. [...] a free speech enthusiast, I’d oppose for that reason alone). You can find arguments here and here why Bork deserved all the flak he got. As the Alternet link points out, the Senate [...]

  21. Credits and mortgage…

    [...]Leave Robert Bork Alllooooooonnnnnne! : Lawyers, Guns & Money[...]…

  22. [...] the individual right interpretation of the Second Amendment, not to mention having suspiciously statist views of the Constitution [...]

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