What People Forget About Bork . . .

This Supreme Court nomination brings back discussion of Bork because the left would like to see something like that happen again. It’s the model. Of course, they had a majority and were still the dominant party then. The memory is that Bork lost for being extreme. I recall a little history and can suggest a different reason.

The reason Bork was demonized was simple payback. He was in Justice during Watergate. Nixon told Elliott Richardson to fire Archibald Cox (special investigator). Richardson resigned. Next guy down resigned. Bork agreed to do the firing at the behest of Richardson and his lieutenant because someone had to do it lest a full-blown constitutional crisis emerge. That act earned Bork everlasting enmity from the left.

Some commenters will ask why I’m making a post out of a response I gave to comments earlier. The answer is, “I feel like it.”

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30 thoughts on “What People Forget About Bork . . .

  1. “Bork agreed to do the firing at the behest of Richardson and his lieutenant because someone had to do it lest a full-blown constitutional crisis emerge.”

    That’s a cop out and I bet you know it. There’s no constitutional crisis created by a criminal president trying to fire the prosecutor investigating his crime. I thought you’d be all for making a stand for conscience instead of bowing to a craven point of law.

  2. Weren’t eternal Righty bugaboos David Souter and Hillary Rodham (soon-to-be Rodham-Clinton) on Cox’s staff? The same staff that stood up to Bork and continued the investigation? Why, I believe so!

    So, Clinton was payback for Nixon on all sorts of levels, eh? And, given that much of the Bush Admin’s runners and gunners cut their teeth during ol’ Tricky Dicky’s presidency, it’s not surprising to see the ol’ long knives come out, honed by years of vitriol and sad, sad hate.

    Bork remained unconfirmed because he was a nutball, and you know it. Have you ever actually READ anything he’s written. He’s off his bleeding rocker, he is. Thanks for revisiting the Right Wing talking points though. Revisionist history is always fun.

  3. Basically, the Right engages in projecting when it comes to Bork. They like to fantasize that he was rejected for some nonexistent personal failing that the Democrats demonized him for.

    The truth is, he wasn’t confirmed because his legal “theory” is anathema to anyone with an inkling of liberal thought. He basically believes that if a right isn’t explicitly spelled out in the Constitution, we don’t have it. Despite calling himself an originalist, he blatantly ignores the 9th and 10th Amendments.

    That’s why the crazy man got nixed.

  4. There are no genuine originalists, just people who pick and choose which rights they want interpreted in old ways and which in new.

    Originalism means an end to gun rights except for muskets.

    Originalism means an end to the standing military or at the very least the end of the marines and air force.

    Originalism has something to offend everyone and hence the “originalists” are really nothing of the kind. To them the Founding Father’s intent is a political club to be used on their opponents but never turned on themselves.

    It’s like the people who aregue that the founding fathers created a christian state when the opposite is true. As Deists they by and large rejected christ outright.

  5. James, it’s crazy for you to accuse me of revisiting GOP talking points because I don’t recall anyone having made the case I did above.

  6. Really? Because I’ve read it at least once before in the Righty Blogosphere.

    Don’t worry. It didn’t make any sense then, either.

    Tlaloc, man, you’ll pick a fight with anyone, won’t you?

  7. “Tlaloc, man, you’ll pick a fight with anyone, won’t you?”

    The intention is not to pick fights, well at least usually it isn’t. Rather my goal is education and further refinement of thought processes. When someone says something untrue I feel compelled to point it out. It’s a growth experience. I expect the same in return of course.

  8. Too often people get into echo chambers where they hear the same things repeated ad nauseum until they exhibit willing suspension of cognition. That’s precisely why we are in such a mess right now. It’s also part of why large scale democracies really don’t work.

  9. Sounds good in this echo chamber between two lefty’s, but that’s not a very good description of originalism.

  10. John Roberts Jr. is the supreme nominee.

    I’d say the most worrisome thing about him is his short time on the bench and that he worked in the Reagan White House COunsel’s Office (which hopefully means he’ll get some very pointed questions about the massive Iran-contra scandal).

  11. “Sounds good in this echo chamber between two lefty’s, but that’s not a very good description of originalism.”

    I don’t seek out an echo chamber, indeed I’d be hard pressed to find one. Rather I read a ton of views from all sides.

    By all mean provide your definition of originalism.

  12. Yeah, I thought you might want to know. What originalism would require is simply that you consult the intention of the founders and the plain meaning of the text understood amid the backdrop of the society in which they lived.

    When it comes to something like ownership of personal firearms, for instance, we can learn something. I agree that the second amendment is not the end-all, be-all of gun ownership. It addresses a particular instance in which citizens may gather weaponry into a force for civil defense.

    However, many did not want a bill of rights for fear that it would be taken to spell out all of our rights. That fear was repeatedly attacked with the assertion that we all know these aren’t ALL of our rights. In the end, we had to have an amendment saying, these aren’t ALL of our rights. If you had told men of the time that their right to bear arms depended completely on the second amendment, they would have revolted. Men understand that they had that right.

    Understand? Your originalism says they wouldn’t have that right. I’ve just shown you why originalism would have insisted they did. My originalism is the correct one rooted in the real history of the republic.

  13. Hunter by that reasoning there’s no way you can complain about the “right of provacy” or the “right of abortion” because you just explicitly said people have more rights than what is said in the constitution/bill of rights.

    You just undercut the entire argument FOR originalism.

    Besides which it inherently requires interpretation which is the other thing the “origionalists” claim to want to do away with.

  14. No, I knew you’d say it, but it doesn’t. There was no understood right to an abortion during that time. In fact, one of the big mistakes in Roe (and widely understood to be so by legal historians) is Blackmun’s claim that abortion wasn’t prohibited early on in the Western world. The truth is that the code of Justinian prohibited it during the reign of the Roman empire. English common law also included strong limitations based on the concept of “quickening” when the child first moved in utero.

  15. “No, I knew you’d say it, but it doesn’t. There was no understood right to an abortion during that time.”

    I can easily argue that there was an understood right to go to a doctor for whatever treatment you wanted. If you can argue the right to bear arms means arms that the founding fathers could never imagine I can easily claim the same for medical procedures.

  16. Baker, you’re actually kind of wrong on abortion.

    During the 19th century, termination of a pregnancy was a distasteful but socially acceptable method of preventing a drain on resources. There was no social stigma attached to it in America. That came later.

  17. Also, Baker, your point about originalism exemplifies why Bork was a nutboy: He says he is an originalist and ignores the 9th and 10th Amendments.

    Conservative originalists argue that they “know” the intent or historical background of why the Founders decisions were made as such, but when the facts of history conflict with their ideology, they’re willing to throw originalism out and embrace interpretation and activism.

    Take the whole Deism versus Christian argument. Or when I placed the Bill of Rights in the context of the history the Founders and their parents lived in, I am accused of “revisionism.”

    Basically, Hunter, I’m calling “Bulls–t!” on anyone who claims to be an originalist and clings to modern ideology. Our ideologies didn’t exist back then. Our political parties didn’t exist back then and, indeed, many of the Founders looked askance on party loyalties. Our current parties grew out of a difference of opinion on loyalty to the nation or loyalty to one’s state (i.e. one of the 13 colonies) of origin (the Virginia contingent being one of the largest culprits, with the exception of Washington).

    I’m not an originalist. I submit that no one is. You can’t cling to a current ideology and claim to be an originalist, period. (That’s a generic you, BTW)

  18. James, my point is that it has not been unheard of to see abortion illegal at various points in Western history and no one supposed that it was some kind of absolute right. I don’t know if you’ve read any social histories of abortion, but I have. I have also been published on the matter in a law review, so don’t assume I don’t know whereof I speak (or write).

    There was a period in the 19th century when abortion became common in some big cities. The American Medical Association and churches carried out a crusade and managed to EXPLICITLY outlaw the practice in most of the nation. It was de facto illegal prior to becoming de jure illegal because doctors wouldn’t do it. The Hippocatric Oath prohibited the practice.

  19. “James, my point is that it has not been unheard of to see abortion illegal at various points in Western history and no one supposed that it was some kind of absolute right.”

    Well weapons have been illegal at a great many points in history so I guess we can assume the founders had no intent of a universal right to any arms you wanted.

    See how incredibly dependent on your choice of historical view this philosophy is hunter? You can easily find something in the historical record to support any position this way. Easily.

    Besides which it completely begs the question of why you would possibly care what the founders thought? They weren’t gods or ubermensch. They were just some guys in a bad situation who did the best they could. Great for them. I’m gratified they did as well as they did but there’s no reason for me to care one whit what they would think of our modern world when I know they couldn’t even begin to comprehend it.

    Originalism then is nothing more than an updated primitivism. Instead of idolizing some mythical “Noble Savage” though you idolize an equally mythical “Perfect Founder.” Stop looking for some Deus ex Machina from the past to save you and deal with modern life and our modern problems.

  20. I’m looking for no such thing. I’d be more than happy if we would abide by the method of amending the Constitution set out in the document rather than having judges create or deny rights because for Americans IT IS OUR SOCIAL CONTRACT. In arranging for a reliquishment of state sovereignty, there was a deal struck. Like any contract, it matters what the deal strikers thought.

  21. James, you’re wrong about the relationship of ideology to the Constitution. That is not so relevant. If we are true Constitutionalists, all questions of the right, the true, and the beautiful would belong to the states.

    The Constitution is not a document like the Bible that tells us what is good, pure, etc. The Constitution is more like a treaty between two sovereignties describing how they will preside over the same population.

  22. “In arranging for a reliquishment of state sovereignty, there was a deal struck. Like any contract, it matters what the deal strikers thought.”

    The deal makers in this case are long dead and gone. Unlike a normal contract a constitution is set up to automatically apply to people who never actually agreed to the terms of the “contract.” Hence the comparison is shaky at best. Learned judges are certainly within their purview to interprete the constitution both in terms of it’s historical meaning and in the more important modern meaning. Without that our constitution will be rendered instantly obsolete.

  23. There’s not a lot of justice in that. Real people gave up real rights and prerogatives for themselves and their ancestors in order to achieve a more perfect order. The deal they made is the deal they made. Neither you nor I are free to simply ignore it or discount it as the work of dead men because we wish to do so. It was a real event with real terms and conditions. We are not left without recourse. The document provides for amendment and it has been done many times. There is no reason we should have to settle for a shifting dictatorship of five justices either for us or against us.

  24. “There’s not a lot of justice in that. Real people gave up real rights and prerogatives for themselves and their ancestors in order to achieve a more perfect order.”

    And in the modern age we struggle to make it more perfect yet by interpreting it in light of radically different conditions.

    “The deal they made is the deal they made. Neither you nor I are free to simply ignore it or discount it as the work of dead men because we wish to do so.”

    That doesn’t mean we have to confine ourselves to their view of it either. They saw it one way. And it worked in their day and age. It would NOT work in this day. We see based on our very different circumstances. There’s nothing wrong with that.

    “We are not left without recourse. The document provides for amendment and it has been done many times.”

    For extreme cases. In those situations where the very document itself must be changed to make sure that changing interpretations do not do some unacceptable harm then yes amedn it. Equal rights? Sure. Suffragette? Sure.

    “There is no reason we should have to settle for a shifting dictatorship of five justices either for us or against us.”

    What you mean is that the courts have sided aginst your pet causes and you don’t like it so now you want to change the rules. That’s the dictatorship. Worse it’s a theocracy. It’s the very thing we deplore in the middle east.
    The judges rule and interpret because that’s what we hired them to do. Don’t complain that they do their job.

  25. No, you’re wrong. The genius of the document is that it would work quite well even if interpreted as it was consistently prior to about 1935 (a standard date with legal historians). The states would simply bear a lot more responsibility for governing. Is there any particular reason that would be unworkable? No. We’d be more like a Europe with a lot of states and more cooperation between them.

  26. 1. There’s no reason a centrally controlled government would be more or less static/dynamic than a decentralized one. In fact, the truly federal model has the advantage of Tocqueville’s laboratories of democracy. Everybody is doing different stuff and you get to see what works.

    2. Our current mode of interpretation brings about bizarre results like a Violence Against Women Act premised on the Interstate Commerce Clause.

  27. Yes, indeed, VAW (and ADA, NCLB, IDEA, the Voter Rights Act, etc) was premised upon Congress’ ability to affect interstate commerce because to do otherwise opens challenges under states’ rights. Such an act was taken to set a minimum standard of rights for individuals across the nation, rather than having different standards in different states.

    Because of the manner the Constitution is constructed in, where loyalties to one’s colony played as big or even a bigger role than loyalty to the fledgling nation, state’s with tiny populations, or backwards ideas, need to approve Amendments. So, even if a majority of American citizens wanted to enact such rights, a paltry collection of states could prevent such an act.

    Sometimes you make do with what you have and create innovative solutions.

  28. I think the big rights that needed to be created were well done so via the amendment process and the appropriately used 14th amendment equal protection clause. The extensive use of the Interstate Commerce Clause is fundamentally wrong and shows that the central government oversteps its bounds.

    I’ve accepted it, but it’s still worth arguing the point if we’re going to discuss the workability of an originalist view.

  29. If it was payback, Bork made it easy. Instead of listening to the questions of the senators and answering them fully and respectfully, as William Bennett had a few months earlier, Bork stormed through the hearings as if accusing each senator of complete idiocy and total incompetence.

    The nomination was within Bork’s grasp; he preferred to use the back of that hand to try to slap the senate, America, and anything else that rankled him at any time in his life.

    The votes for Bork declined as the hearings went on. As Bork took the most extreme and bizarre reading of each of his writings examined, his supporters faded away.

    In the end, Bork demonstrated the ill-temper and poor judgment which caused him to be the assassin of justice that Saturday. Having so ably demonstrated that he was incapable of learning from mistakes, or at all, the Senate regretfully voted his nomination down.

    “Borking?” It was easy. Go to Lexis, look for “Author: Bork,” hit “Print.”

    Bork had even refused the advice of key nominee-advisors, as I recall. Get worried for Roberts’ chances if you read that he’s “fired” Fred Thompson.

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