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Leave Robert Bork Alllooooooonnnnnne!

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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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