Friday, July 01, 2005

 

Why I opposed Robert Bork

Supreme Court Justice Sandra Day O'Connor has announced her retirement, setting the stage for the first Supreme Court nomination in 11 years. I think this is an excellent time, then, to reflect on a previous nomination that bitterly divided the nation: President Reagan nominated Robert Bork to the Supreme Court in 1987. Bork was eventually rejected by the Senate, after a fight that got quite ugly on all sides. Neither Democrats nor Republicans comported themselves well.

The greatest focus of opposition to Bob Bork was the fear that he would vote to reverse Roe v. Wade and roll back some of the civil rights decisions of the post-World War II era. However, those issues were not the center of my personal opposition to his nomination.

First and foremost, as Solicitor General of the United States during the Watergate era, Bork failed a crucial test of character. Watergate special prosecutor Archibald Cox was pressing the White House to turn over the tapes that Nixon had made of nearly every conversation in the Oval Office. Nixon's response was to get rid of Cox, so he ordered Attorney General Elliot Richardson to fire him. Richardson resigned because he refused to comply. Richardson's deputy, William Ruckelshaus, also resigned rather than comply with such an egregious miscarriage of justice. However, Robert Bork, the third in line, said, "Sure, why not?" Those tapes eventually brought down Richard Nixon, and the special prosecutor law was clarified so that the subject of an investigation could not fire the investigator, but Bork was forever tainted by his betrayal of the concept of justice.

Second, Bork has written extensively about his concept of the theory of law, especially constitutional law, and his writings are frightening. For just one outrageous example, Bork, who claims to be a "strict constructionist," asserts the twisted notion that somehow "freedom of speech" only refers to "freedom of explicitly political speech":
Congress shall make no law abridging the freedom of speech. — First Amendment

Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law. — Robert Bork, Indiana Law Journal, 1971
To say that you are a "strict constructionist" and then insert a word not written by the authors of the Constitution, radically changing its scope and meaning, is an outright contradiction.

In short, I opposed Robert Bork's nomination less because of the decisions I feared he would make, and more because of how I feared he would make them. That the man is a respected legal scholar is mystifying, given his bizarre and unique theories.

If you want to read more about Bork, I recommend Dispatches from the Culture Wars.



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