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Yet More Bork

[ 92 ] December 20, 2012 |

My bottom line: “It says something about Bork’s constitutional vision that accurately restating his public views has become synonymous with the dirtiest of dirty tricks.”   Along similar lines, Jeffrey Toobin gets right to the point: “Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century.”

To be fair and balanced, Jeffrey Rosen says that we should have left Robert Bork alllonnnnne:

But even from the sidelines, as I celebrated Bork’s defeat, I remember feeling that the nominee was being treated unfairly. Senator Edward Kennedy set the tone with a demagogic attack. “Robert Bork’s America,” he said, “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, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans.”

Bork’s record was distorted beyond recognition, and his name was transformed from a noun into a verb. The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking. And it had obvious costs for Bork.

Before the hearings, Robert Bork had been renowned at Yale Law School, where he taught for nearly two decades, not only for his influence on antitrust and constitutional law, but for his ideological open-mindedness: many students of his era fondly remember the seminar he co-taught with his closest friend on the faculty, the liberal constitutional scholar (and TNR legal editor) Alexander Bickel, which featured affectionate bipartisan debates. After Bickel criticized his conservative jurisprudence in one class, Bork replied, “You’ll notice that my colleague’s elegant theories of jurisprudence are a cross between Edmund Burke and Fiddler on the Roof.” TNR was said to be Bork’s favorite journal at the time, and in 1968 he wrote a piece for this magazine, “Why I Am for Nixon,” praising the Republican presidential candidate as the true heir of classical liberalism.

After the hearings, he would become, in print at least, something of the caricature of legal conservatism that Kennedy had painted. But he remained friendly and convivial in private: Whenever I ran into him and his devoted wife, Mary Ellen, over the years at holiday sing-alongs, he loved to discuss his old friend Bickel over scotch. Although the hearings had left Bork professionally embittered, he remained personally gracious.

Just like the various conservative hacks I discuss in the Prospect piece, he decries Kennedy for “distorting” Bork’s record without bothering to elaborate a single specific claim that is inaccurate, which speaks for itself. (Previously, he’s called it an “ad hominem” attack although it was entirely substantive — again, if it’s allegedly a grave personal insult to describe his record, what does that tell you?) The idea that he was once “ideologically flexible” but only became a reactionary after being rejected — now that’s a distortion of the historical record. Sure, his bitterness and resentment increased, and yes Slouching Toward Gomorrah is not merely reactionary but (unlike The Antitrust Paradox) completely unserious. But he had an unbroken record of odious political and constitutional views before 1987 — he opposed the Civil Rights Act in Rosen’s very publication more than 20 years before mean Ted Kennedy pointed it out (a fact Rosen conveniently omits.) His ideological “flexibility” consisted of an evolution from defending reactionary outcomes with Chicago-style formal theory to defending reactionary outcomes with not-even-law-office history.

But what I most disagree with is the idea that being “convivial” is more important than the fact that if Bork “instead of Anthony Kennedy, had been the swing vote between 1987 and 2012, America would indeed have been a more illiberal place.” Admittedly, this is an advance for Rosen — in the past, he’s denied that Bork’s confirmation would have led to the overruling of Roe v. Wade, for example, by mischaracterizing the historical record. And as Paul says, that’s just the beginning of what confirming Bork would have meant.  This order of priorities is self-refuting — the effect of his decisions is what matters, not whether he’s a nice guy in private. Defeating Bork led to better constitutional law and gave Bork more time to reminisce with Rosen about Alex Bickel over scotches. Win-win!

…I forgot to mention this, but also compare and contrast Rosen’s treatment of Bork with his treatment of Sonia Sotomayor.   Let’s just say that you couldn’t swap anecdotes about Herbert Wechsler over martinis at the right kind of club with Sotomayor, and really what could be more important?

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  1. actor212 says:

    But even from the sidelines, as I celebrated Bork’s defeat, I remember feeling that the nominee was being treated unfairly. Senator Edward Kennedy set the tone with a demagogic attack. “Robert Bork’s America,” he said, “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, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans.”

    Are we sure Bork lost?

  2. Sherm says:

    Sorry Scott, but no criticism of Bork is sufficient without these three words: “Saturday Night Massacre.”

  3. Lecturer says:

    So here’s a random thought. Can one be socially liberal but also believe that there isn’t really a constitutional right to, say, contraception? I know that in practice that would mean putting Baptist clergy in between a woman and her Gynecologist throughout the former Confederacy, but in theory, could one take a Bork view of the constitution but also fight for a broad right to privacy in your state legislatures and Congress?

    • Sherm says:

      I believe that is Alan Dershowitz’s position.

    • Murc says:

      Can one be socially liberal but also believe that there isn’t really a constitutional right to, say, contraception?

      Yes, as long as you believe that people should have free and unfettered access to contraceptives.

      I myself am a pretty liberal dude, and I have a number of problems with some of the shibboleths of liberal constitutional interpretation. Hell, a lot of commerce clause jurisprudence makes me uncomfortable, and that’s one of the only things standing between us and neo-feudalism.

      But it’s completely possible to think something would be excellent public policy without also believing it is a constitutional right. The converse also holds; it is possible to believe existing, beyond a shadow of a doubt constitutional rights are bad public policy.

      • Anonymous says:

        Can one be socially liberal but also believe that there isn’t really a constitutional right to, say, contraception?

        Yes, as long as you believe that people should have free and unfettered access to contraceptives.

        If there isn’t a constitutional right to contraception, then there won’t be free and unfettered access to contraception.

        • rea says:

          If there isn’t a constitutional right to contraception, then there won’t be free and unfettered access to contraception

          Well, that’s not true. Imagine that Congress and every state legislature passes the “free and unfettered access to contraception” act.

        • Incontinentia Buttocks says:

          If there isn’t a constitutional right to contraception, then there won’t be free and unfettered access to contraception.

          Perhaps. But that is not an argument in favor of the proposition that there is a constitutional right to contraception, but merely an argument that there ought to be one.

          Similarly, our federal legislative branch will never be truly democratic so long as the states have equal representation in the Senate. But the states are, in fact, guaranteed equal representation in the Senate.

          (For what it’s worth, I happen to be sympathetic to the argument that there is a constitutional right to privacy that encompasses access to contraception. But as a general principle, I think it’s foolish to assume that the Constitution is the best of all possible constitutions.)

          • Murc says:

            But as a general principle, I think it’s foolish to assume that the Constitution is the best of all possible constitutions.

            The modern entrenchment in the public mind of the Constitution as some sort of holy writ baffles me. We amend the damn thing all the time. We’ve amended it during my lifetime! We’ve amended it multiple times during the lifetimes of millions of still-living Americans.

            • rea says:

              There’s an epistemological problem here–where do rights come from? The Founders did not think they were granted by the Constitution–rather, they were something with which we were “endowed by the Creator.” We’ve semi-abandoned that kind of “natural law” thinking, but we don’t have a ready replacement for it. So, while I think there is a constitutional privacy right, I don’t have a ready expalanation of how I know that, or where the right comes from.

              • Incontinentia Buttocks says:

                All those other rights are in the 9th Amendment, of course!

              • Scott Lemieux says:

                Implicit in the structure of the Bill of Rights? You know, Douglas’s opinion in Griswold is actually very smart.

                • Armando says:

                  Finally, someone say it. Are we the only 2?

                • cpinva says:

                  thank you for stating it so succinctly.

                  Implicit in the structure of the Bill of Rights?

                  no, there’s at least 3 or 4 of us.

                  Are we the only 2?

                  even a cursory reading of the first 10 amendments would lead any reasonable person to conclude, though the word is never actually used, that the authors believed in a personal right to privacy. were that not the case, at least half of those amendments wouldn’t exist, starting with amendment 1.

                  i’ve attempted to make this case elsewhere, and it always comes down to “but the word “privacy” doesn’t appear anywhere in the constitution, so obviously that wasn’t what they were thinking.” i then point out that the term “DVD” doesn’t appear in the constitution either, but the inventors were granted a patent for it.

                  the authors gave us the basic framework, and the ability to change/adapt it as necessary. some things are inherent in the basic document, and the first ten amendments, a right to personal privacy is easily one of them. to argue, with a straight face, otherwise, is to display a stunning lack of understanding of where the authors were coming from.

                • Avedon says:

                  Well, it’s explicit when they use the term “secure”, as in, “The right of the people to be secure in their persons, houses, papers, and effects…”

                  “Privacy” wasn’t used the way we use it today, and referred pretty explicitly to we now might refer to as “going to the toilet”. (Hence “privy”.)

              • Joe says:

                Certain rights were natural. For instance, the right to a grand jury is not “endowed by a creator.” Voting rights also aren’t natural.

            • Fraser says:

              I’ve noticed how many proposed amendments (anti-abortion, anti-flag burning, anti-income tax, etc.) are specifically presented as restoring the Original Meaning of the Constitution.

            • John says:

              All the time? Since the bill of rights, it’s been amended 17 times in 220 years. Eight of those amendments were minor, uncontroversial technical fixes (11, 12, 17, 20, 22, 23, 25, 27). Two more were prohibition and its repeal (18, 21). That leaves you with the Reconstruction amendments, the income tax, votes for women and 18 year olds, and abolition of the poll tax as the only substantive amendments since the Bill of Rights that haven’t been repealed.

              That’s 7 in 220 years – once every 30 years or so. No meaningful ones in my lifetime.

              • Scott Lemieux says:

                Right. The amendment process is extraordinarily cumbersome, which is why the only important expansions of rights that didn’t involve extending the franchise literally had to be ratified at the point of a gun. (And why the Constitution is inevitably amended informally.)

                • Timb says:

                  Heck, even Jefferson thought the Amendment process was too cumbersome. He wanted a national university and internal improvements, subscribed to the silly “strict constructionist” arguments, and determined he just couldn’t do those things without an Amendment(s).

                  Since amending was almost impossible, he gave up those ideas and let his successors argue about it.

              • Matt says:

                Oddly enough, the likes of Bork and co. oppose EVERY ONE of the substantial amendments – with the exception of the “corporations are people” reading of the 14th.

          • Anonymous says:

            Perhaps. But that is not an argument in favor of the proposition that there is a constitutional right to contraception, but merely an argument that there ought to be one.

            Of course not, which is why no one made that argument. Have fun wasting time replying to things that were’nt said.

            My post was commenting on the rank fucking stupidity of liberals who claim they support certain propositions, but are also “uncomfortable” with the constitutional theories which advance them.

            The “Constitution” is whatever the courts say it is, and if Slatesque contrarians argue that there is no constitutional right to privacy, then there will be no right to privacy, period.

            • Joe says:

              I agree with the sentiment (the policy arguments in support repeatedly sound mighty like the constitutional arguments opposed) but do think there was an equal protection sort of approach possible in Griswold too ala offered by law clerk John Hart Ely Jr. I don’t find his anti-Roe law review article convincing though would note he opposed Maher v. Roe on equal protection grounds & supported (with a letter to justices!) Casey on precedent grounds.

      • doug says:

        I think the constitutional right is to privacy not “contraception” per se. Now you might have an issue with that right, but it will be more difficult to ridicule.

      • catclub says:

        “The converse also holds; it is possible to believe existing, beyond a shadow of a doubt constitutional rights are bad public policy.”

        I have hard time with gun rights. But do not think the present status equals beyond a shadow of a doubt.

        Any other examples? Voting for 18 year-olds?

        • L.M. says:

          I have no larger point here, but wanted to offer up a few possible examples:

          Much of the First Amendment: the ludicrously overbroad definition of speech (and its corollary, the dangerously weak protection afforded to political speech); the invention of a right to “free association”; the reification of (certain species of) religion as a political trump.

          Many states’ rights held to exist under our federalism, of course, including the remarkable penumbras of the Eleventh Amendment.

          Many other Western jurisdictions regard our Fifth Amendment privilege against self-incrimination as overbroad, and a case could plausibly be made that the Double Jeopardy Clause has a net-negative impact on the rights of criminal defendants.

    • Nemo says:

      I’ll say that I find the case for succession (although not nullification) more convincing than I would like to on policy grounds.

      Let me start by saying that, as a matter of policy, the Confederacy existed for one (and exactly one) reason: the perpetuation of the ownership of certain (black) people by other (white) people (which I’m really quite strongly in the “against” camp on).

      But I have a hard time drawing a line where the 13 colonies had a legitimate right to split from Britain but the South did not have a similar right.

      That’s my secret constitutional shame.

  4. c u n d gulag says:

    Well, with his dog and colleagues, ‘you know who,’ was “convivial” – with Jews, Commies, Gays, Slavs, and Gypsies, uhm… Not so much!

  5. commie atheist says:

    Whenever I ran into him and his devoted wife, Mary Ellen, over the years at holiday sing-alongs, he loved to discuss his old friend Bickel over scotch.

    Sing Along With Bork? Yikes.

    • Incontinentia Buttocks says:

      That last paragraph quoted in the OP speaks volumes, doesn’t it? Especially about the operation of The Village and the cash value of its civility obsessions.

      I have no trouble saying that I don’t give a rat’s ass how “convivial” the Justices of the Supreme Court are, especially when they are out of their robes and away from their chambers. The number of people (I almost wrote “Americans,” but it’s actually not just Americans) whose lives are profoundly affected by SCOTUS decisions dwarfs the number of people the most convivial justice could possibly have a drink with or impress with his ideologically polymorphous classroom banter.

      • Joshua says:

        I’m sure all those Iraqis dead by the hand of President Bush would love that Fiddler on the Roof joke.

      • Incontinentia Buttocks says:

        As I often do in discussions of Jeff Rosen, I feel the need to add that 90% of what’s wrong with just about any Rosen piece can be explained in terms of temperament. I went to college with Jeff and knew him fairly well. He’s a smart enough guy (though far from the most brilliant person I knew then) and a nice enough guy (especially to those he sees as somehow important), but he is wired to be an insider…and to over-value insiders and their conventional wisdom. His output as a public intellectual flows directly from the deepest structures of his personality.

  6. cpinva says:

    castigating people, for accurately stating someone’s actual, evidenced positions, is the last, desperate gasp of the scoundrel. it’s touted as political “foul play”, on the part of those attempting to hide those actual positions from the public. it’s become a republican cottage industry.

  7. MobiusKlein says:

    If we are talking about turning the courts into partisan battle grounds, can we start the clock in 1986 in California, with the campaign against Rose Bird?

  8. socraticsilence says:

    Can someone tell why I or the vast majority of Americans should give a fuck how Bork or Reagan, etc were in private when we will never meet them rather than concerning ourselves solely with their public policy pronouncements?

  9. Julian says:

    his name was transformed from a noun into a verb.

    a tragedy. I remember when the same fate befell Sir Reginald Fuck

  10. parsec says:

    Bork borked Bork.

  11. Murc says:

    Oh, look. Andrew Sullivan has made a post defending his own conduct during the nomination fight, going after Kennedy for making “crude smears”, and then piously claiming that, of course, it is good that Bork didn’t get on the court but it was gone about the wrong way.

    And in a day or so, he’ll post reader letters telling him he’s wrong, but will completely fail to comment on their substance.

    • L2P says:

      Yes, Sullivan is still appalled that Kennedy employed the demagoguery of making Bork explain Bork’s actual opinions on things.

      • Johnny Sack says:

        I’ve never understood Sullivan’s respect for Reagan. The man is HIV positive and he respects Ronald fucking Reagan? The man whose inaction basically said, oh what’s that the gay disease? Eh they can all drop dead.

        • rea says:

          Reagan was much worse than a homophobe. Reagan personally knew a lot of gays, and liked them just fine. He just didn’t have a problem with exploiting and playing to other peoples’ homophobia for cynical political purposes, to the point of letting gays die by the hundreds of thousands. I’d rather deal with honest hatred.

  12. Joe says:

    I agree with John that “all the time” is an exaggeration but not sure if all the amendments listed as uncontroversial and/or as “minor” as suggested. The 11A is less minor in part by construction. The 12A etc. aren’t really ‘minor’ unless we think VP Romney would be a minor change.

    • Joe says:

      Maybe you can get around that but take the 22A. There would quite likely be someone who would be elected to a third term if that was possible. Direct election of senators was a major change, even if most (all? not sure) states would have in effect did it anyway. Moving up the inauguration two months is significant as is giving voting rights to DC.

  13. DrDick says:

    I suspect that Bork was on the wrong side of every major legal controversy of the nineteenth century as well. We just do not have a judicial record on those issues.

  14. Julia Grey says:

    It drives me absolutely wild that someone SERIOUSLY uses a person’s ability to be polite and amiable in private as some kind of argument for their esssential value or personal integrity as a public servant. What does Bork’s participation in “sing-a-longs” and reminiscent conversations have to do with whether he was wrongly kept from serving on the Supreme Court? Is the ability to be charming over cocktails an essential qualification? Does it prove something about the guy? What, exactly?

    I can’t remember who it was, but there was some columnist back during the Iraq war who said they trusted a particular government flunky to be telling the truth or doing the right thing BECAUSE HE SAW THE GUY REGULARLY AT HIS LOCAL SAFEWAY and he seemed like a nice fella.

    What. The. Fking. FK?

    • Anonymous says:

      That was Richard Cohen, praising the pardon of Caspar Weinberger (the guy Cohen used to see at Safeway) by the first President Bush.

      • Julia Grey says:

        Thank you. Now I remember.

        Yeah, he was actually saying Caspar Weinberger (!) deserved his pardon because he was such a personable fella while he was out doing his shopping. Just look at him! You can see he’s a Boy Scout by the polite way he pushes his cart and smiles so graciously at the hoi polloi. He couldn’t be a bad guy. He just COULDN’T.

        [face in hands]

        JEEMUS CRISPEE.

  15. Bitter Scribe says:

    Let’s be fair. Bork didn’t want blacks to sit at segregated lunch counters. He just thought it was wrong to prevent anyone else from forcing them to do so.

    Someone should have told him the same thing they should tell every guy who wears a beard with a scraggly mustache or none at all: Don’t. It makes you look Amish, or like your face is a giant armpit.

  16. Charles says:

    I do not understand why anyone considers Bork so great on anti-trust. Granted, I have only read reviews of his work, rather than the work itself, but where the favorable reviews (e.g. Priest) extol his work, they sound like bulls–t.

    Laws are supposed to provide justice. When courts get involved in defining consumer welfare, this sounds a lot like central planning. Yes, it is fine to look at economic benefits of economic arrangements, but most of the evils of economic concentration that we see nowadays are not easily monetized. Wal-Mart comes in to offer lowlow prices… at the cost of bribery in Mexico, slavery in China, union-busting in the US, and devastated retailers everywhere.

    The progressives who established anti-trust laws understood these things. An essential part of a truly competitive marketplace is that no player has pricing power. In effect that means that they are small players. And so when The Antitrust Paradox “criticized and deflated the value of protecting small business against large business” as Priest says, what it means is that The Antitrust Paradox was full of ahistorical crap.

    No, I have not and am not going to read the book. But I suspect that if others were to read the book thoughtfully and consider how the ideas of the Chicago School have led to the degradation of life and the loss of economic freedom for so many of us, they might come to realize that Bork may have been influential– as a bad influence.

    I can find nothing about the man’s life to commend, and I did try.

  17. Charles says:

    Adding, to quote from the linked article:

    Barak Orbach:…

    In 1960, he [Bork] was concerned the socialists would take over the country through antitrust.

    Anyone who thought this in 1960 was not a great thinker: he was a loony.

    The more I look at this, the more I wonder whether Bork did not just dust off plutocratic arguments from the Gilded Age, framed them in more modern language, and sold them as original.

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  19. Johnny Sack says:

    Then there was that dogshit McArdle wrote a few years back about how Biden ruined the Supreme Court confirmation process. The Senate used to defer to the President because there was an understanding that the President wouldn’t try to pass off reactionary extremists. And what, when the President (Reagan) decides hey, fuck that, the Senate is just supposed to abdicate its constitutional responsibility?

  20. Anonymous says:

    Where’d y’all get this “segregated lunchcounter” shit? For black people in the South, there wasn’t no such thing as a “lunchcounter”. They werem’t allowed to eat sitting down in the presence of White People.

  21. [...] LGM uses the death of former Supreme Court candidate turned right-wing author Robert Bork to look back at his career and the way he became a conservative icon because liberals dared reject him—my [...]

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