Thursday, December 20, 2012

Bork Is Dead

Robert Bork is dead. The living Constitution breathes easier.

I can muster an inch of sympathy for his friends, his family, and his soul, but not much more. Whatever his personal virtues, and professional graciousness ("graciousness" seems to be the word of choice used in admiring Conservative obits), they dwindled to insignificance beside his wretched, racist, sexist, hate-filled jurisprudence. Consider what he published in The New Republic in 1963 about civil rights legislation:
The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.
Lots of unsympathetic journalists have pointed to that passage, but I'd also like to highlight a later passage that is, I think, illustrative of the Conservative perspective of law:
Though the basic objection is to the law's impact upon individual liberty, it is also appropriate to question the practicality of enforcing a law which runs contrary to the customs, indeed the moral beliefs, of a large portion of the country. Of what value is a law which compels service to Negroes without close surveillance to make sure the service is on the same terms given to whites? It is not difficult to imagine many ways in which barbers, landlords, lunch counter operators, and the like can nominally comply with the law but effectively discourage Negro patrons.
Bork never thought the government, certainly not the federal government, could change the attitudes or the behaviors of Southern white racists—it wasn't just that such legislation would trample the liberties of all Americans; it was that the legislation would never, ever work. He was wrong about all of it, but I mention it because similar language has been used all week in the press to deny the efficacy of gun control, a topic I shall take up again in the next post.

In most of the obits, though, the act of dying seems to have shielded Bork from the judgments he deserves. Even Jeffrey Rosen at The New Republic just published his insipid final thoughts on Bork, which include this travesty of a line:
Next to Antonin Scalia, Bork did more to put constitutional text and history front and center than any other judge in America.
Let's get accurate. Scalia and Bork did more than most other judges to distort history to serve a neoliberal worldview and a constitutionalism devoid of humanity. The notion that these guys were somehow immersed in American history more than other judges is fantasy. A tip for Rosen and others who think like this: just because they call themselves "originalists" does not mean they actually know what was going on "originally" in 1789 any better than anyone else.

If you want to read an obit Bork earned, check out Jeffrey Toobin's piece in The New Yorker.

There is one final counter-factual irony I was musing on: It was a tremendously good thing that Bork was denied by the Senate, but if he had been confirmed to the Supreme Court, Anthony Kennedy would not have been. That means Obama would now be looking to fill that spot with a justice of his own liking that would swing the balance of the court.

1 comment:

  1. Linda Greenhouse offered some thoughtful reflections on Bork this morning: