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It Could Have Been Even Worse


Arthur Silber reminds us of another reason to resist the canonization of Ronald Reagan: his nomination of the truly appalling Robert Bork to the Supreme Court. To ponder what would have happened if the future author of Slouching Towards Gomorrah had not been rejected by the Senate is chilling.

I’m reminded of Bruce Ackerman’s splendid review of Bork’s shoddy apologia The Tempting of America (99 Yale Law Journal, 1990.) A great example of Bork’s mendacity is his attempt to argue that the Ninth Amendment is a mere “inkblot” of no constitutional significance:

Sticking to the text, he reports that it “states simply, if enigmatically, that ‘[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'” The puzzle here is why Bork should find the text “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.

This is the best way of summing up Bork–his career is essentially a long disparagement of most of the rights the framers chose to include in our Constitution. He is not a principled adherent of “originalism” or “judicial restraint;” just a drooling reactionary. The possibility of one of his kin being appointed to the Supreme Court is another reason why, pace Jon Chait, the 2004 election is in fact quite consequential.

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