Robert Bork
. Bork, bork, bork!
Robert Heron Bork (1927–2012) was an American conservative former judge, Solicitor General, and career crook. He was an outspoken advocate of the originalist school of legal thought as well as a scholar of law and author of several best-selling books of political criticism. The tone of these books is generally negative and highly critical of what he perceived as a trend of left-wing radicalism in Western society.
Though Bork was not the first originalist, he is considered to have written the foundational thesis on modern originalism in 1971.[1][2]:3-4
One of his most famous books was Slouching Toward Gomorrah, which was a play on Slouching Toward Bethlehem, a line from the poem The Second Coming by W.B. Yeats.[3] In it, he blamed all sorts of ills on the 1960s and liberalism. Dan Savage then made a play on Bork's book with Skipping Toward Gomorrah, which caused Bork to threaten to sue. As soon as Savage pointed out Bork's own use of an earlier title, Bork backed down. As a judge he should have known that book titles are not generally copyrightable or considered to be intellectual property.[4]
1973 role in Saturday Night Massacre[edit]
In October 1973 President Richard Nixon, angered at Watergate Independent Counsel Archibald Cox's refusal to compromise on a settlement over subpoenaed White House tapes, ordered the firing of Cox[5] whom Nixon considered a "Kennedy liberal." Attorney General Elliot Richardson, also of Massachusetts, refused and resigned under protest; Deputy Attorney General William Ruckelshaus likewise refused and resigned. Solicitor General Robert Bork then carried out the President's request which has become known in popular culture as the "Saturday Night Massacre," although no one was killed.
Wingnut or moderate?[edit]
Bork, for his day, was insanely right-wing. One of the books he authored at Yale was The Antitrust Paradox, which argued that corporate mergers were good for society and that some anti-trust measures hurt consumers. The book drew heavy criticism from actual economists, especially for the way Bork incorrectly uses the term "consumer welfare" throughout it, one of the most basic concepts for why anti-trust laws exist.[6]
In 1984, Bork ruled against a Navy sailor who was discharged for homosexuality in the court case Dronenburg v. Zech. The sailor (Dronenburg) charged that this violated his right to privacy but Bork, alongside Antonin Scalia, ruled against him, then whined about Supreme Court cases where the Court found in favor of the right to privacy.[7]
Perhaps his most vile moment was when he defended the poll tax during his confirmation hearing for Solicitor General, arguing that "It was a very small tax, it was not discriminatory, and I doubt that it had much impact on the welfare of the nation one way or the other." He continued to defend this view by his 1987 nomination.[8]
On the other hand, he claimed to support desegregation. His position on gun control, where he criticized the NRA for being too pro-gun and his statement that the Second Amendment only guarantees the right to participate in a "government militia," might make him a RINO by today's standards. It is alternatively possible that this was merely a manifestation of his belief, explained in his books and opinions, in infinite judicial deference to legislation[9] and the paucity of individual rights compared to whatever the state considered its interests to be.
1987 nomination to the Supreme Court[edit]
Upon the retirement of Lewis F. Powell, a well-thought-of moderate from the Supreme Court in 1987, then-President Ronald Reagan actually sought to replace him with someone who could be a more… batty influence. He chose Bork. The reaction was swift and aggressive; Bork's political views and past were drawn to the attention of the public and widely denounced by Gregory Peck the reality-based community. Among other things, Democratic Senator Ted Kennedy asserted that Bork would favor an anti-abortion stance, and would be a threat to the ruling of Roe v. Wade if allowed into the Supreme Court. Kennedy set the tone of the opposition to Bork's nomination by stating:[2]:4
“”Robert Bork's America is a land in which women would be forced into back-alley abortions,[note 1] blacks would sit at segregated lunch counters,[note 2] rogue police could break down citizens' doors in midnight raids,[note 3] and schoolchildren could not be taught about evolution,[note 4] writers and artists would be censored at the whim of the Government,[note 5] and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heard of our democracy.[note 6]
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A tide of opposition formed from various supporters of civil rights, and it became apparent that Bork was an unpopular nomination. He was defeated in the Senate vote and the position eventually instead went to Anthony Kennedy.
Bork's influence today[edit]
Bork was not sent to the Supreme Court, primarily because of his originalist opposition to the Griswold v. Connecticut Supreme Court decision that married couples had a right to privacy and birth control.[11] However, his active promotion of originalism was sent to the Supreme Court in later years; as of 2022 four of six conservative justices on the court are committed originalists and the other two generally go along with originalist rulings.[11] Justice Clarence Thomas in his opinion overturn Roe v. Wade specifically said that Griswold v. Connecticut should also be overturned.[12]
"Bork" as a term of slang[edit]
The word "bork" has entered popular vocabulary since Robert Bork's failed nomination. Its meaning is flexible depending on the speaker, but it is generally used to attack a person systematically, especially in the media.[13] Also, "borked up" is another way of saying "messed up".
Notes[edit]
- ↑ By overturning Roe v. Wade[2]:3
- ↑ By overturning Plessy v. Ferguson and reinstating states' rights separate but equal laws.[2]:2-5
- ↑ Because the Fourth Amendment did not specifically say that a warrant must be issued by a judge for police to search a house.
- ↑ Presumably because the Founding Fathers did not foresee the scientific consensus on evolution or universal public schooling.
- ↑ Because Bork had argued in his 1971 paper that only political speech was protected by the First Amendment.[1][2]:3
- ↑ Because the indigent would not be entitled to a public defense lawyer.[10]
References[edit]
- ↑ 1.0 1.1 Neutral Principles and Some First Amendment Problems by Robert H. Bork (1971) Indiana Law Journal 47(1):1-35.
- ↑ 2.0 2.1 2.2 2.3 2.4 Worse Than Nothing: The Dangerous Fallacy of Originalism by Erwin Chemerinsky (2023) Yale University Press. ISBN 0300273983.
- ↑ Robert H. Bork, Slouching Towards Gomorrah: Modern Liberalism and American Decline, Harper Perennial, 2003. ISBN 9780060573119
- ↑ Can a Book Title be Copyrighted? by Jean Murray (September 09, 2016) the balance.
- ↑ After which, Nixon became a Cox sacker.
- ↑ The Antitrust Consumer Welfare Paradox, University of Arizona
- ↑ Dronenburg v. Zech: Judicial Restraint or. Judicial Prejudice? Yale Law & Policy Review, Vol. 3:245, 1984.
- ↑ Gregory Peck wins.
- ↑ The Borkean Dilemma: Robert Bork and the Tension between Originalism and Democracy, University of Chicago
- ↑ The Enduring Constitutional Vision of the Warren Court by Geoffrey Stone & David A. Strauss (February 11, 2020) American Constitution Society.
- ↑ 11.0 11.1 Originalism is bunk. Liberal lawyers shouldn’t fall for it. by Ruth Marcus (December 1, 2022 at 9:21 a.m. EST) The Washington Post.
- ↑ Biden, other critics fear Thomas’s ‘extreme’ position on contraception by Meryl Kornfield et al. (Updated June 26, 2022 at 3:01 p.m. EDT; Published June 24, 2022 at 4:33 p.m. EDT) The Washington Post.
- ↑ Define Borked at Dictionary.com