SALON

Wednesday, Dec 19, 2012 7:38 PM UTC

Robert Bork’s nauseating worldview

It drove the right nuts when Ted Kennedy called out the racism and sexism in his legal views. But Kennedy was right

By

Topics: Robert Bork, Supreme Court, Ted Kennedy, R.I.P, Editor's Picks,

Robert Bork's nauseating worldview (Credit: AP/Charles Tasnadi)

Twenty-five years ago Ronald Reagan tried and failed to put Robert Bork on the Supreme Court. Movement conservatives reacted with remarkably durable outrage to this political defeat. To them, of course, this wasn’t a political defeat at all, but a fundamentally illegitimate “politicization” of the nomination process, enabled by supposed slanders aimed at one of the nation’s most distinguished legal scholars.

Bork had become accidentally like a martyr, and he cashed in, quite literally, on his supposed victim status, writing a couple of best-selling books decrying the moral degeneracy of contemporary America, and living large on what has been referred to indelicately as wingnut welfare.

This narrative was always a bunch of nonsense, and although de mortuis nil nisi bonum is a maxim of our profession, the memory of the deceased will not be spared here.

Bork’s nomination was defeated because over the course of his career he supported a number of legal positions that became, over time, extremely unpopular with the American public as a whole. For example, he defended the idea that states should be free to enforce Jim Crow laws, and opposed the Civil Rights Act of 1964 on the grounds that using federal law to dismantle the apartheid legal code of the post-Reconstruction South was both unconstitutional and morally wrong.

Unfortunately for him, by 1987 the idea that it was OK to use state violence to remove black people from segregated lunch counters wasn’t the kind of idea that was still acceptable in polite company.

Similarly, Bork’s view that a state ought to be free to criminalize the purchase of contraception by married couples was by that point in American history considered, to use a legal term of art, kind of wacky.

To the American right wing, of course, pointing out that Bork had argued vigorously for legal outcomes that most Americans now found repugnant in the extreme was nothing less than a smear campaign. Bork, after all, was merely putting forth his “principled” view of what results should flow from a proper interpretation of the Constitution.

In particular, Sen. Ted Kennedy’s remark that “in Robert Bork’s America there is no room at the inn for blacks and no place in the Constitution for women” sent and still sends conservatives into paroxysm of fury. How dare someone like Kennedy besmirch the reputation of this brilliant legal scholar with such crude characterizations?

All this whining somewhat successfully obscured the fact that Kennedy’s statement, while not as nuanced as the kind of objection that might be lodged in a Yale Law School seminar, was largely accurate. Bork did oppose federal anti-segregation laws, and he didn’t believe that women should be considered a protected class under the equal protection clause of the 14th Amendment. (A year ago Bork put forth the remarkable view that, beyond any technical legal objections to interpreting the amendment in this way, doing so was no longer necessary in any case because women “aren’t discriminated against anymore”).

Bork’s nomination was rejected because a group of politicians, entrusted by the Constitution with the task of making a political decision (that, after all, is the kind of decision that politicians are supposed to make), decided that Bork’s views on a wide range of subjects were – thankfully — no longer politically acceptable in contemporary America.

That is exactly how the judicial nomination process is supposed to work, and the fact that it worked so well in Bork’s case is something to celebrate. That conservatives have been throwing a 25-year temper tantrum about this merely illustrates their unwillingness to face up to the fact that their core beliefs about how judges should interpret the Constitution were and continue to be rejected by the American people.

Paul Campos is a professor of law at the University of Colorado at Boulder. More Paul Campos.

Next Article

Related Stories

More Related Stories

Featured Slide Shows

The week in 10 pics

close X
  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11
  • This photo. President Barack Obama has a laugh during the unveiling of the George W. Bush Presidential Center in Dallas, Tx., Thursday. Former first lady Barbara Bush, who candidly admitted this week we've had enough Bushes in the White House, is unamused.
    Reuters/Jason Reed

  • Rescue workers converge Wednesday in Savar, Bangladesh, where the collapse of a garment building killed more than 300. Factory owners had ignored police orders to vacate the work site the day before.
    AP/A.M. Ahad

  • Police gather Wednesday at the Massachusetts Institute of Technology to honor campus officer Sean Collier, who was allegedly killed in a shootout with the Boston Marathon bombing suspects last week.
    AP/Elise Amendola

  • Police tape closes the site of a car bomb that targeted the French embassy in Libya Tuesday. The explosion wounded two French guards and caused extensive damage to Tripoli's upscale al-Andalus neighborhood.
    AP/Abdul Majeed Forjani

  • Protestors rage outside the residence of Indian Prime Minister Manmohan Singh Sunday following the rape of a 5-year-old girl in New Delhi. The girl was allegedly kidnapped and tortured before being abandoned in a locked room for two days.
    AP/Manish Swarup

  • Clarksville, Mo., residents sit in a life boat Monday after a Mississippi River flooding, the 13th worst on record.
    AP/Jeff Roberson

  • Workers pause Wednesday for a memorial service at the site of the West, Tx., fertilizer plant explosion, which killed 14 people and left a crater more than 90 feet wide.
    AP/The San Antonio Express-News, Tom Reel

  • Aerial footage of the devastation following a 7.0 magnitude earthquake in China's Sichuan province last Saturday. At least 180 people were killed and as many as 11,000 injured in the quake.
    AP/Liu Yinghua

  • On Wednesday, Hazmat-suited federal authorities search a martial arts studio in Tupelo, Miss., once operated by Everett Dutschke, the newest lead in the increasingly twisty ricin case. Last week, President Barack Obama, Sen. Roger Wicker, R.-Miss., and a Mississippi judge were each sent letters laced with the deadly poison.
    AP/Rogelio V. Solis

  • The lighting of Freedom Hall at the George W. Bush Presidential Center Thursday is celebrated with (what else but) red, white and blue fireworks.
    AP/David J. Phillip

  • Recent Slide Shows

  • Share on Twitter
  • Share on Facebook
  • Thumbnails
  • Fullscreen
  • 1 of 11

Related Videos

Comments

 53 Comments

Comment Preview

Your name will appear as username

You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>

follow salon

Most Read

Popular on Reddit

links from salon.com

From Around the Web

Presented by Scribol
listener_new_rect The Listener: "The Shelter Cycle": Raised in a cult

Recommendations