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“There’s That Explanation, and Then There’s One That Makes Sense.”

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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.

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