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
  • Lisa Montgomery embraces her nephew Thursday after a tornado tore apart her home in Cleburne, Texas. The twister killed six people and destroyed entire swaths of the North Texas town.
    Credit: AP/LM Otero

  • Jack McMahon, the defense attorney for abortion doctor Kermit Gosnell, speaks outside the Criminal Justice Center in Philadelphia Tuesday. His client was convicted of killing three babies in his clinic, and will serve multiple life sentences.
    Credit: AP/Matt Rourke

  • A photo taken Monday captures Vice President Joe Biden's response to a Milwaukee second-grader's innovative proposal to end America's epidemic of gun violence. This guy!
    Credit: AP/Jenny Aicher

  • Sen. Rand Paul, R-Ky., flanked by a grouper-eyed Michele Bachmann, addresses the IRS' admission that it targeted Tea Party groups in advance of the 2012 election. In an op-ed for CNN Thursday, the Kentucky senator slammed the president for his faux outrage.
    Credit: AP/Molly Riley

  • Ousted IRS chief Steven Miller is sworn in on Capitol Hill Friday. Miller testified before the House Ways and Means Committee on the extra scrutiny the agency gave conservative groups applying for tax-exempt status.
    Credit: AP/J. Scott Applewhite

  • Attorney General Eric Holder pauses as he testifies on Capitol Hill before the House Judiciary Committee Wednesday. Holder is under fire, among other things, for the Justice Department's gathering of phone records at the Associated Press.
    Credit: AP/Carolyn Kaster

  • O.J. Simpson sits during an evidentiary hearing at Clark County District Court in Las Vegas, Nev., Thursday. Simpson, who is currently serving a nine-to-33-year sentence in state prison for armed robbery and kidnapping, is using a writ of habeas corpus to seek a new trial.
    Credit: AP/Las Vegas Review-Journal/Jeff Scheid

  • Major Tom to ground control: On Sunday astronaut Chris Hadfield recorded the first music video from space, a cover of David Bowie's "Space Oddity."
    Credit: AP/NASA/Chris Hadfield

  • When it rains it pours. President Barack Obama speaks during a news conference Thursday with Turkish Prime Minister Recep Tayyip Erdogan, inexplicably inspiring an #umbrellagate Twitter meme.
    Credit: AP/Jacquelyn Martin

  • A smoke plume rises high above a road block at the intersection of County A and Ross Road east of Solon Springs, Wis., Tuesday. No injuries were reported, but the the wildfire caused evacuations across northwestern Wisconsin.
    Credit: AP/The Duluth News-Tribune/Clint Austin

  • 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: Chekhov's story mirrors Russia's own

Recommendations