Borking: An Unequivocally Good Thing

I have a piece up at Alternet about the myth of Robert Bork.   Nocera’s representative whining notwithstanding, the defeat of Bork wasn’t unprecedented, it wasn’t obstructionist, it was justified, and it was crucial to maintaining fundamental constitutional rights.    And there’s a reason why so many hacks just quote the Ted Kennedy speech without bothering to point out why it was wrong:

Nocera is typical in that he quotes Kennedy as if his comments were self-evidently dishonest, without bothering to cite anything in the speech that was factually wrong. This is understandable because everything in Kennedy’s speech was based on Bork’s public writings. Bork did write an article for the New Republic denouncing the Civil Rights Act as unconstitutional and “based on a principle of unsurpassed ugliness.” (Nor was Bork’s opposition to the Civil Rights Act purely an academic exercise; according to Rick Perlstein’s Before the Storm, Bork was instrumental in convincing Republican presidential candidate Barry Goldwater to oppose it.) Bork was a critic of the exclusionary rule – which prevents the state from profiting from illegal searches and hence inhibits them. He wrote a widely discussed article in 1971 that the free speech clauses of the First Amendment should “not cover scientific, educational, commercial or literary expressions as such.” He was a long-standing critic not only of Roe v. Wade but the right to privacy in general, and whether opponents of reproductive rights wish to acknowledge it or not bans on abortion lead to women getting maimed or killed by back-alley abortions.

The point about Roe is particularly crucial, because the Senate’s rejection of Bork saved Roe. In 1992, the Supreme Court re-affirmed Roe by a 5-4 vote, with Bork’s replacement Anthony Kennedy as the swing vote in the majority. Had Bork confirmed, abortion would be illegal in a significant number of states, and important extensions of the right to privacy to gays and lesbians would have been thwarted.

It’s also worth noting that Bork also believed that not only the landmark Afrcian-American disenfranchisement case Baker v. Carr but the housing discrimination case Shelley v. Kramer were wrongly decided.   Bork, in other words, on civil rights was to the right of a unanimous Supreme Court from 1948.   We’re supposed to see his defeat in 1987 as some massive outrage against human decency?

Part of what’s going on is the phenomenon Krugman recently discussed: allegedly the dirtiest political tactic there could ever be is to discuss the consequences of conservative policies.   Apparently, one can only discuss motivations and assume that conservative motivations are pure as spring water.   This went double for Bork, since the many ugly consequences of his views were allegedly just unintended consequences of Deeply Held Legal Principles.   But the problem, as the Ackerman piece I discussed the other day makes very well, is that Bork’s “originalism” doesn’t even rise to the level of law-office history.   He spent most of his academic career as a theory-driven law-and-economics libertarian, and made his late switch to “originalism” without developing any substantial depth of historical knowledge.    The “originalism” in The Tempting of America consists almost entirely of question-begging and bare assertion that happens in virtually every case of ongoing controversy to line up with Republican policy preferences.    The idea that it was beyond the pale to note the consequences of Bork’s confirmation was absurd then and it still is.