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Robert Bork's America
December 20, 2012 10:49 AM   Subscribe

Robert Bork, the conservative jurist at the heart of two political firestorms--in 1973 he carried out the "Saturday Night Massacre" by firing Watergate special prosecutor Archibald Cox, and in 1987 had his nomination for the Supreme Court rejected by the Senate after a combative confirmation hearing--died yesterday. A perennially divisive figure, Bork's passing drew encomiums from the right and condemnation from the left.
posted by Horace Rumpole (88 comments total) 10 users marked this as a favorite

 
I disagreed with the man on many an issue, but his was a towering intellect.
posted by DWRoelands at 10:50 AM on December 20, 2012


Awwwww, poor Nixon's Hatchetman.
posted by Aquaman at 10:51 AM on December 20, 2012 [9 favorites]


Please tell me this is where "borked" came from.
posted by nathancaswell at 10:52 AM on December 20, 2012 [2 favorites]


Somewhere, the Swedish Chef hangs his ladles in silence.
posted by JHarris at 10:54 AM on December 20, 2012 [12 favorites]


nathancaswell: “Please tell me this is where ‘borked’ came from.”

This is where 'borked' came from.
posted by koeselitz at 10:54 AM on December 20, 2012 [1 favorite]


It is, nathancaswell. At least in the context of the American judicial nomination process.

The Jeffrey Toobin piece is one of the better examples of obituary-as-character-assassination I've ever read. Then again, I guess "character assassination" might imply that the target doesn't have it coming, and Bork sure as hell did.
posted by brennen at 10:56 AM on December 20, 2012 [1 favorite]


The first sentence of the New Yorker's obit: Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century.

That's one way to leave a legacy.
posted by dry white toast at 10:56 AM on December 20, 2012 [10 favorites]


The last sentence of the FPP makes it sound like liberals were denouncing Bork for dying and conservatives were praising him for it.
posted by straight at 10:57 AM on December 20, 2012 [4 favorites]


I met him several times. He was as unpleasant in person as he was in policy. Good riddance.
posted by headnsouth at 10:57 AM on December 20, 2012 [11 favorites]


Christ, what an asshole.
posted by brand-gnu at 10:58 AM on December 20, 2012 [2 favorites]


I disagreed with the man on many an issue, but his was a towering intellect.

not quite, originalism is one of those things which just seems so patently simple-minded that it's hard to believe it's anything other than cynical...
Bork was also famous for being one of the most prominent advocates of "originalism," the idea that the Constitution should be interpreted in light of how its provisions were understood at the time of their enactment. But as scholars such as Bruce Ackerman and Ronald Dworkin have demonstrated in exhaustive detail, Bork's originalism was for the most part intellectually shallow and politically motivated. While Bork was—with the possible exception of Antonin Scalia—the most famous originalist, he had no historical training, and his major scholarly work exemplified the ahistorical formal theory of the Chicago school in which he was trained. Not surprisingly, then, his claims about constitutional controversies such as the meaning of the Fourteenth Amendment in his book on constitutional theory consists of little more than bare assertions that happen to square nicely with conservative policy preferences. Conservative originalism has been very successful as a public-relations technique, but its intellectual accomplishments have been significantly more modest.
The Jeffrey Toobin piece is one of the better examples of obituary-as-character-assassination I've ever read.

it's not character assasination if it's true.
posted by ennui.bz at 10:59 AM on December 20, 2012 [16 favorites]


is anyone else curious to hear more details from headnsouth?
posted by fingers_of_fire at 11:00 AM on December 20, 2012 [9 favorites]


but his was a towering intellect.

Really? Is this how he is regarded? It seems to me he was a rigid ideologue whose naively originalist view of the constitution was the source of (and justified) so much of the idiocy and inflexibility of Scalia and Co.

This is one of those obits where I can't say anything nice so I shouldn't say anything, but just to make a point (as it were) I am not going to end this sentence with a period
posted by spitbull at 11:01 AM on December 20, 2012 [5 favorites]


I am going to have some good ol' sodomy in the privacy of my own home without fear of being arrested in celebration.
posted by munchingzombie at 11:03 AM on December 20, 2012 [14 favorites]


He was, in the nineteen-sixties, a libertarian of sorts; this worldview led him to conclude that poll taxes were constitutional and the Civil Rights Act of 1964 was not.

I had to read this sentence three times before I could even begin to decide if it's an instance of the New Yorker's famous sly sarcasm. I've tentatively concluded that it is not, that there actually is an American flavor of "libertarianism" that would entirely embrace these positions.
posted by George_Spiggott at 11:04 AM on December 20, 2012 [1 favorite]


Re: "Borked," why was the Swedish Chef so obsessed with the failed confirmation hearings of this guy?

Also, I saw a bit of the hearings last night where a young Joe Biden tore Bork a new one on national TV. Sometimes you forget just what Biden has accomplished in his career. Thanks Joe, on behalf of women, minorities, and ordinary people everywhere. If you had accomplished nothing else, helping to sink Bork's candidacy would have been enough. As bad as Scalia and Thomas are, this guy was a lot more dangerous to civil rights.
posted by spitbull at 11:06 AM on December 20, 2012 [18 favorites]


Børk! Børk! Børk!
posted by Blasdelb at 11:06 AM on December 20, 2012 [1 favorite]


 
posted by grouse at 11:09 AM on December 20, 2012 [8 favorites]


...that there actually is an American flavor of "libertarianism" that would entirely embrace these positions.

This is true iff you take "American" to be a synonym of "idiot". Which I don't necessarily argue with.
posted by DU at 11:09 AM on December 20, 2012


I mentioned his passing last night by saying, "huh, bork died."' to which my husband responded "oh noes!, who will wear the swan dress now?". Which made me laugh. That's about as close as I can get to saying something nice, so I'll stop there.
posted by dejah420 at 11:11 AM on December 20, 2012


This is where 'borked' came from.

Huh. But don't we use it in a more broad sense? E.g., that link is borked.
posted by Melismata at 11:12 AM on December 20, 2012


I recall watching the televised confirmation hearings in 1984 and thinking at the time that it was no way to confirm a justice to the Supreme Court. The whole episode did not cast America in the best light.

It seems to me that Robert Bork would have been no more radical the current conservative Justices. And certainly much more intellectually able than all but one.

In my view, "Borked" means defeating one guy on such harsh principle that only someone worse can be nominated in the future. The saga of Robert Bork is also the saga of how the party of Reagan became the party that would never nominate someone so liberal as Ronald Reagan.
posted by three blind mice at 11:13 AM on December 20, 2012


DU, I don't think this way, but with some extreme mental contortion and what I suspect is severely misapplied empathy I've concluded that it works like this: poll taxes are regressive, therefore they don't "punish success" the way progressive taxes do and are therefore pro-liberty. The Civil Rights Act forbids businesses from discriminating in certain ways by race and is therefore anti-liberty.

I practically had to stand on my head and tie my brain in a knot before I worked it out, but if you are enough of an asshole, these can seem like reasonable libertarian priorities with which to interpret these two things.
posted by George_Spiggott at 11:14 AM on December 20, 2012 [1 favorite]


god, how do I not appear happy that this old, mean asshole died: This old, mean asshole who was also, by most accounts a mean asshole when he was young, too. And, was never said a single thing I ever agreed with, though he often said them really well. . . There must be a German word for this, being so manifestly wrong and 'off' yet simultaneously going about it not only with real conviction but also putting a not small amount of intellectual elbow grease behind it...
posted by From Bklyn at 11:15 AM on December 20, 2012 [2 favorites]


It seems to me that Robert Bork would have been no more radical the current conservative Justices. And certainly much more intellectually able than all but one.

If I remember right, the administration put the Scalia nomination up first because they figured he'd be the harder one to get confirmed, and could therefore use all the good will they could get. Bork, they assumed, would be a slam dunk.
posted by IndigoJones at 11:18 AM on December 20, 2012 [2 favorites]



posted by crayz at 11:23 AM on December 20, 2012 [1 favorite]


Melismata: “Huh. But don't we use it in a more broad sense? E.g., that link is borked.”

I'm not a linguist or anything, and I haven't done any research, but my feeling is that that usage is very much a neologism from the past year or two or three.
posted by koeselitz at 11:24 AM on December 20, 2012


It's a little astonishing to reflect that just 25 years ago, the followup nomination of Douglas Ginsburg was scuttled by the revelation that he had smoked marijuana a few times.
posted by Horace Rumpole at 11:27 AM on December 20, 2012 [3 favorites]


I'm not a linguist or anything, and I haven't done any research, but my feeling is that that usage is very much a neologism from the past year or two or three.

Really? I'd be surprised if computer types weren't using this before 1987, being as it is based on a simple and humorous-sounding misspelling.
posted by ROU_Xenophobe at 11:31 AM on December 20, 2012 [2 favorites]


my feeling is that that usage is very much a neologism from the past year or two or three.

Urban Dictionary gets it to 2004. This to 2001. I'm sure it can be pushed back even further.
posted by IndigoJones at 11:32 AM on December 20, 2012 [2 favorites]


It seems to me that Robert Bork would have been no more radical the current conservative Justices.

John Roberts upheld Obamacare and called Roe v. Wade "settled law," so I'm not so sure. In any event, Bork would have been way more radical than Anthony Kennedy, who replaced him.
posted by Dasein at 11:35 AM on December 20, 2012 [1 favorite]


I'm not a linguist or anything, and I haven't done any research, but my feeling is that that usage is very much a neologism from the past year or two or three.

No, it was common in the geek parlance in the early '90s. I think it's a case of convergent evolution - from borken to borked to bork.
posted by Slap*Happy at 11:36 AM on December 20, 2012 [4 favorites]


An example from 1997.
posted by grouse at 11:38 AM on December 20, 2012 [1 favorite]


So basically this whole thread is now going to be a derail about the derivation of the word "borked." Sorry, that's probably my fault.
posted by koeselitz at 11:39 AM on December 20, 2012 [1 favorite]


People, people. The Swedish Chef was in the late 70s. The late 70s.

(Thanks for the link, Slap*Happy!)
posted by Melismata at 11:40 AM on December 20, 2012 [1 favorite]


Always good to get a jolt of some smooth, pleasing schadenfreude when a supposedly freedom and/or equality-loving hard-right/hard-left asshole intellectual kicks off.
posted by aerotive at 11:42 AM on December 20, 2012 [1 favorite]


So basically this whole thread is now going to be a derail about the derivation of the word "borked."

It's my fault. I borked the thread.
posted by nathancaswell at 11:42 AM on December 20, 2012 [4 favorites]


Yeah, we went from "Look at this asshole!" to "Look at this firewall config!"

I'm OK with this.
posted by Slap*Happy at 11:45 AM on December 20, 2012 [5 favorites]


I disagreed with the man on many an issue, but his was a towering intellect.
Since we're now clearly borking the original topic...

Jesse Helms was someone I disagreed with at every turn yet still managed to respect. Robert Bork was no Jesse Helms.

I know nothing of the intelligence levels of either of them.
posted by Blue_Villain at 11:46 AM on December 20, 2012 [2 favorites]


If Bork was confirmed in 1986, Obama would be vetting new liberal SC justices this afternoon.

The legacy of the vicious and obscene campaign against Bork has permanently warped a judicial confirmation process that now reaches lower judicial appointments.
posted by lstanley at 11:52 AM on December 20, 2012 [1 favorite]


Regarding Robert Bork, his beliefs, his positions, etc –

I don't disagree that he was an asshole. I also don't disagree that a lot of his public positions were politically motivated. However, out of some strange sense that the ideas that the dead held in life deserve a little rehabilitation, I'll offer this:

Robert Bork made at least the kernel of a compelling point regarding the best way of interpreting the constitution. There are a lot of very important things that really need to be determined through legislation and, ultimately, through constitutional amendment. Civil rights is one of those things. People now sometimes say that you shouldn't have to vote on civil rights, because that assumes that those aren't already rights; I disagree. It assumes that those aren't already constitutionally guaranteed rights; and that assumption sometimes makes sense.

There are those of us – by "us" I mean queer-identified pro-choice feminists – who have some worries about the ways we got to where we are. The US Constitution is a deeply flawed document, but one of its singular benefits is that it provides a mechanism for changing it when we realize that there are ways that it's out of line. Throughout history, this has been the method we've used when we realize that certain principles need to be enshrined in the core of our federal government as inviolable. That was the case with the 13th, 14th, and 15th amendments, which put into practice the advances our society made by learning the lessons of the civil war. It was the case with the 19th amendment, which guaranteed women's suffrage. It was even the case with prohibition, a national debate which turned into a massive mistake.

I guess what I'm coming around to saying is this: there are a lot of us who are a little uneasy about how very easy it would be to overturn Roe v Wade. There are a lot of us who are a little uneasy about the prospect of having gay marriage be a right guaranteed only because a number of guys on the Supreme Court decided to say it was so. I am no originalist, and in fact I believe that originalism is quite incoherent as a doctrine; so I don't necessarily have a huge problem with the Court deciding to reinterpret the constitution in new ways that fit the times. However, up to now, what we've done when something is very important is we've actually changed the constitution to state clearly what we think it ought to state. And historically, it seems like we've stopped doing that. That, I think, is at least a reason to be a little nervous. It's been more than half a century since a substantive and important constitutional amendment was ratified – in fact in that time no constitutional amendment has been proposed and ratified.

Really, I disagree with Bork on many things, but I do wonder sometimes if the durability of our institutions doesn't suffer somewhat when we neglect to come together and actively codify into law our more important positions on what should be held in the core of our governmental principles. I think a lot of us now would say that doing this – say for example amending the constitution to make abortion a guaranteed right – would be nearly impossible given the divisive political climate. But it was ever thus, and when we've stopped fighting that climate and just given up on perfecting the constitution, I wonder where that leaves us.

I feel compelled to finish this off by repeating that I share almost no opinions with Robert Bork, and in fact I believe he was quite calcified in his opinions. I'm only trying to see something good in what he believed, as weird as that may be.
posted by koeselitz at 11:57 AM on December 20, 2012 [9 favorites]


It would be a shame to mention Robert Bork's failed Supreme Court nomination without also mentioning the speech Edward Kennedy gave on the floor of the Senate a mere 45 minutes after the nomination was announced.

An excerpt:
Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.
Every time I encounter the text of this speech online I am amazed by its bellicose language and strident accusations, and I often find myself searching afterwards for a conservative rebuttal, an argument that Bork's well-known originalism and oft-expressed opinions would not lead to the fundamentally unjust society that Kennedy foresaw. I have yet to find one.

Mention of homosexuality is conspicuously absent in the speech, but civil rights for them would also have suffered in Bork's America. Recall that even in 2003, Lawrence v. Texas was decided by only a 6-3 vote, with Anthony Kennedy (who won the appointment after Bork lost) siding with the majority and writing the opinion.
posted by The Confessor at 12:08 PM on December 20, 2012 [7 favorites]


What's missing from all these obituaries is that Bork was the inspiration for the design of the judge on The Simpsons. Not the Judge Judy-type judge that was introduced in later seasons, but the original judge--the one with the Bork-like beard. Or at least that's what I remember from watching some DVD commentaries many years ago.
posted by crLLC at 12:09 PM on December 20, 2012 [1 favorite]


I haven't done any research, but my feeling is that that usage is very much a neologism from the past year or two or three.

In my experience, a sentence like this, referring to just about any word, is invariably wrong, often ludicrously so.
posted by straight at 12:23 PM on December 20, 2012 [4 favorites]


Given how much and how often Congress seemed to bend to Reagan's wishes and had an almost toothless approach to even his worst crimes, the fact that they grilled Bork in his confirmation hearings, wherein he simply stated exactly what he believed and inspired justifiable shock, seems like not such a bad thing, in the greater context of things.
posted by Marisa Stole the Precious Thing at 12:33 PM on December 20, 2012 [2 favorites]


from that Ted Kennedy speech about Bork during the confirmation hearings: “Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

The Confessor: “Every time I encounter the text of this speech online I am amazed by its bellicose language and strident accusations, and I often find myself searching afterwards for a conservative rebuttal, an argument that Bork's well-known originalism and oft-expressed opinions would not lead to the fundamentally unjust society that Kennedy foresaw. I have yet to find one.”

The rebuttal is fairly simple, as I understand it. At least as far as it goes, Robert Bork was not in fact in favor of segregation, midnight police raids, or censorship – or so he claimed, anyway. He was probably against abortion on principle, but that was beside the point to him. What he was actually saying in all these cases (again, so he claimed) was that the federal government has no business guaranteeing rights and privileges until those rights and privileges are actually guaranteed by the constitution; and Robert Bork did not believe they were.

I grant that he was probably being a little disingenuous. And as others have noted, a lot of this was politically motivated stuff that didn't seem to hem to a coherent policy view. However, it should probably be stated that Robert Bork was not in fact a fascist who believed in a police state and endorsed outright racist institutions – at least not explicitly. One can argue that most of his positions stemmed from a kind of authoritarianism and maybe even some racism, but those were not his stated positions, to say the least.

I say all this only in the interest of making his positions understood, not in the interest of defending them. I just think sometimes it's very easy to get to the point where one wonders how on earth a man could say such insane things; when we wonder things like that, it's usually a good time to try to learn a little about the people saying those things, even if we ultimately conclude that they really are dangerously wrong. It is worth it to try to figure out why people believe what they believe.

And, yes, I will say this too: Ted Kennedy's speech was a piece of politicized bluster. That's what politics is all about, and he had every right to make the speech; and it was probably a net good for the country that he did, and that Bork was not confirmed. But that doesn't mean I agree with the speech, and it doesn't mean the speech is really a fair characterization of Bork or his opinions.
posted by koeselitz at 12:59 PM on December 20, 2012


...and nothing of value was lost.

Let's not use the fact of his death as an excuse to eulogize him in ways he didn't deserve in life: Robert Bork was a serious piece of work.
posted by fifthrider at 1:02 PM on December 20, 2012 [3 favorites]


I sat next to him at a dinner party once and my strongest memory is that his table manners were subpar.
posted by theredpen at 1:11 PM on December 20, 2012 [4 favorites]


The first sentence of the New Yorker's obit: Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century.

Not quite true

Though Bork had many liberal critics, some of his arguments have earned criticism from conservatives as well. Although an opponent of gun control, Bork denounced what he called the "NRA view" of the Second Amendment, something he described as the "belief that the constitution guarantees a right to Teflon-coated bullets." Instead, he argued that the Second Amendment merely guarantees a right to participate in a government militia.

In October 2005, Bork publicly criticized the nomination of Harriet Miers to the Supreme Court.

Being a hatchet man and intellectual hack gives him great insight in spotting hatchet jobs and hacks.
posted by MiltonRandKalman at 1:21 PM on December 20, 2012


The rebuttal is fairly simple, as I understand it. At least as far as it goes, Robert Bork was not in fact in favor of segregation, midnight police raids, or censorship – or so he claimed, anyway. He was probably against abortion on principle, but that was beside the point to him. What he was actually saying in all these cases (again, so he claimed) was that the federal government has no business guaranteeing rights and privileges until those rights and privileges are actually guaranteed by the constitution; and Robert Bork did not believe they were.

This isn't a rebuttal. Kennedy didn't say that Bork was actually in favour of back-alley abortions, segregation, censorship or a police state. He said that these things would be the inevitable result of Bork getting to decide the law, which was an entirely reasonable prediction to make.
posted by A Thousand Baited Hooks at 1:22 PM on December 20, 2012 [10 favorites]


The legacy of the vicious and obscene campaign against Bork...

I remember watching the hearings, and thinking the same thing at the time. I also remember, a few years later, listening to Bork on NPR arguing that cops shouldn't be required to get warrants to search people's homes for drugs, because drugs were so dangerous that almost any search for them was "reasonable." And then I thought "Thank you, Ted Kennedy."
posted by steambadger at 1:37 PM on December 20, 2012 [9 favorites]


Bork was more complicated than I gave him credit for. He supported Brown v. Board of Education, on the grounds (paraphrasing here) that it was impossible to have both segregation and equality. The writers of the 14th might have believed it was possible, but experience showed that they were wrong. Since the intent of the 14th was equality, you had to lean on the side of equality. So, no segegation. OTOH, he was vehemently against the Civil Rights Act.

I'm pretty firmly pro-choice, but I do agree with a lot of the anti-Roe v. Wade types. I really don't see that the Constitution covers abortion. It's silent on the matter and, given that it's silent, it probably should be a state issue. Likewise, I'm totally in favor of consenting adults using contraception and think that anyone who would support laws banning contraception is a loon, but I don't think I agree with Griswold v. Connecticut. Is there really a Constitutional right to condoms?
posted by It's Never Lurgi at 1:54 PM on December 20, 2012 [1 favorite]


A Thousand Baited Hooks: “This isn't a rebuttal. Kennedy didn't say that Bork was actually in favour of back-alley abortions, segregation, censorship or a police state. He said that these things would be the inevitable result of Bork getting to decide the law, which was an entirely reasonable prediction to make.”

Strictly speaking, he said that that was "Robert Bork's America." And I am not sure how fair that is. Robert Bork himself seems to have made clear that he was against segregation, against censorship, and against a police state. I don't imagine he even loved back-alley abortions. I mean: I believe in freedom of speech, which includes people's right to tell vile racist jokes to each other privately. Does that mean that "koeselitz's America" is an America of vile racist jokes?

Look, I know this seems like a point that is oversubtle, but it can't be stated strongly enough that Robert Bork's chief opinions had to do with what the federal government does and does not have the right to legislate, and how that government ought to go about doing it. Bork seems to have believed that, if the United States would like to lay something down as principle henceforth, it should amend the constitution to do so if there is not constitutional basis. It's not hard for me to see the reasoning behind his argument that the constitution does not necessarily include a right to privacy as it was written, and I share his feeling that the constitution should be so amended if we want to proceed as though it were.

But I'm not so sure how far I want to push this. I feel as though Bork and the originalists are profoundly erratic in their application of their invented principles. They tend to act as though originalism is a long-standing constitutional doctrine, when in fact it is very much an innovation of the last half century. Bork's ideas on this and many subjects are muddy, and must be seen as such.

I just think it's insanely simplistic to see Robert Bork as a segregationist and a police-statist. He is really neither. It may be hard to see that unless one actually pays attention to his procedural arguments, which make more sense than one might think they would.
posted by koeselitz at 2:03 PM on December 20, 2012 [1 favorite]


I read Toobin's obituary for Bork, and I was glad he was rejected for the Supreme Court.

Then I saw that he upheld the right of companies to fire staff who refuse to be sterilised, and now I am glad he is dead.

"Some chose sterilisation, some did not. … They offered a choice to the women, some of them I guess didn't want to have children."

You fucking monster. Burn in hell.
posted by robcorr at 2:16 PM on December 20, 2012 [12 favorites]


Robert Bork was not in fact in favor of segregation

But he WAS. He wrote the brief that persuaded Barry Goldwater to vote against the Civil Rights Act of 1964, and the very basis of this position was Plessy v. Ferguson. That is the very FOUNDATION of segregation; it was the legal justification for segregation of all public accomodation, not just streetcars but buses, shops, restaurants, drinking fountains, schools.... Barry used to quote (possibly unknowingly; he was not a scholar) from Plessy. Bork is the one who taught him to.

So much for "originalism".

Goldwater actually had a (relatively) respectable record on civil rights back in Arizona before he fell into Robert Bork's and William Rehnquist's orbit.
posted by Fnarf at 2:38 PM on December 20, 2012 [10 favorites]


It wouldn't surprise me at all to find that the generalized use of "bork" and "borked" grew out of a common funny typo all on its own.

I had no idea this guy existed until yesterday.
posted by Decimask at 2:43 PM on December 20, 2012


If Bork was confirmed in 1986, Obama would be vetting new liberal SC justices this afternoon.

No, that's wishful thinking. Conservatives came to learn from the 60s that the Supreme Court was the source of many of their defeats, and began a campaign to use that power for themselves. If Bork had gotten on, then you'd have to look at every decision of the Supreme Court from 1987 to now and, in cases where Scalia's group lost by one vote, think about how the world would be different now.

No, the combative nature of Supreme Court appointments had been in the cards for decades. If Bork hadn't been the first, it would have been someone else.

In October 2005, Bork publicly criticized the nomination of Harriet Miers to the Supreme Court.

Damning with faint praise.
posted by JHarris at 3:13 PM on December 20, 2012


I'm just not seeing the "towering intellect" part at all.
posted by spitbull at 3:21 PM on December 20, 2012


It's the beard, it throws people off.
posted by Marisa Stole the Precious Thing at 3:22 PM on December 20, 2012


Fnarf: “But he WAS. He wrote the brief that persuaded Barry Goldwater to vote against the Civil Rights Act of 1964, and the very basis of this position was Plessy v. Ferguson. That is the very FOUNDATION of segregation; it was the legal justification for segregation of all public accomodation, not just streetcars but buses, shops, restaurants, drinking fountains, schools.... Barry used to quote (possibly unknowingly; he was not a scholar) from Plessy. Bork is the one who taught him to.”

This might be my own ignorance here, but I'm not sure about this. Can you give a citation on the brief on the Civil Rights Act that Bork supposedly prepared? I know a lot of people talk about it, but it seems that nobody can find it; and I'd never heard the claim that it was based on Plessy V Ferguson. It would actually be very intriguing to find Bork arguing on the basis of Plessy in any context, and I'd like to see that.

In fact, I can find several cases where Robert Bork argues against Plessy V Ferguson and in favor of Brown V Board. For example, from a discussion of a book on Brown V Board that mentions Bork's 1991 book The Tempting Of America:
In the space of a page, Bork contends both that “those who ratified [the 14th Amendment] did not think it outlawed segregated education or segregation in any aspect of life” and that “the result in Brown is consistent with, indeed is compelled by, the original understanding” of the equal protection clause. Bork argues that the clause establishes equal justice under law as a principle, which the Framers thought would be satisfied if states provided separate schools of equal quality for African-Americans. This is, of course, the logic of the Court’s 1896 opinion in Plessy v. Ferguson. However, says Bork, Plessy was not working because “when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. ... The Court’s realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality.”

Note first that Bork’s contention that the Court faced this stark choice contradicts his assertion that the result in Brown was “compelled.” More importantly, try to take in what Bork is saying: An originalist approach to the 14th Amendment supports both apartheid and court-ordered integration. This, according to Michael McConnell of the University of Utah, a far more serious originalist than Bork, “is more typical of the constitutional methodology Bork criticizes than it is of his own professed originalist methodology.”
This is one case where Bork's positions come to light as somewhat convoluted. But he clearly affirms that segregation cannot lead to equality, that practice has proven that segregation cannot lead to equality, and that the Court was correct in banning segregation in public institutions.

So it's clear that Robert Bork, at the very least, was not a thoroughgoing segregationist, and he was not shy about opposing segregation directly in public institutions. I am still in the process of digging up more to read a bit about why exactly he opposed the Civil Rights Act, but so far this is the chunk that everybody seems to quote from him on the subject:
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.
This is clearly not an argument on the basis of some idea that segregation is just. It's an argument on the basis of freedom of speech and of nominal freedom of action in one's own affairs. Also, here's what Bork had to say about that little quote last year:
That was a reflection of what I thought at the time, because I said it. But, heck, it was a long time ago. And it turns out that the transition to a non-discriminatory society was much easier than I thought it would be. I am now perfectly happy with the way things turned out.
That's how he finally felt about the Civil Rights Act.

In any case, it is very hard to read what he has to say and believe that Robert Bork was a supporter of segregation in public institutions at any point in his professional life. I'd be interested to see evidence to the contrary, however.
posted by koeselitz at 4:18 PM on December 20, 2012


prominent advocates of "originalism,"

It always strikes me that what "originalism" actually means is, "What I thought X meant back when I first learned about it." It has everything to do with what I myself considered obvious back when I was learning about this and little to do with actual history.

(My inspiration for this idea comes from examining my own thoughts that run along such lines, by the way, so the idea may have little relevance for other people--though I always suspect I am far from alone in my little turns of irrationality.)
posted by flug at 4:30 PM on December 20, 2012 [1 favorite]


One more thing regarding Bork and segregation – in his 1991 book The Tempting Of America, he says: "The end of state-mandated segregation was the greatest moral triumph constitutional law had ever produced." This is in a discussion of the Brown v Board of Education decision. Again, it seems difficult to see him as a segregationist in light of this.
posted by koeselitz at 4:40 PM on December 20, 2012


Koeselitz, my source for Bork on Plessy is Perlstein's "Before the Storm", which is discussed in your first link. Apparently he never saw the memo either, according to that link. I no longer have that book in front of me; I borrowed it from the library.

Perlstein attributes the Plessy stuff to Bork, and he quotes Goldwater literally quoting from the Plessy decision. Maybe it was Rehnquist.

It's seems quite possible that his views on segregation evolved over time, especially in light of the horrendous defeat that segregationists suffered, despite his "originalist" insistence that there is no such thing as "evolving constitutional views". And your other quote seems to suggest it. He was reformed in 1991.
posted by Fnarf at 4:46 PM on December 20, 2012


Fnarf: “It's seems quite possible that his views on segregation evolved over time, especially in light of the horrendous defeat that segregationists suffered, despite his 'originalist' insistence that there is no such thing as "evolving constitutional views". And your other quote seems to suggest it. He was reformed in 1991.”

This is true. But the fact remains that even every contemporary quotation I can find from Bork frames the debate in an entirely different way: in terms of individual liberty. For example, there is apparently a notorious article he wrote in 1963 entitled "Civil Rights – A Challenge." It apparently dealt with either the Civil Rights Act or related legislation. Cobbling together quotations from various sources around the net, here is a chunk of it:

“The legislature would inform a substantial body of the citizenry that in order to carry on the trades in which they are established they must deal with and serve persons with whom they do not wish to associate.... The fact that the coerced scale of preferences is said to be rooted in a moral order does not alter the impact upon freedom. In a society that purports to value freedom as an end in itself, the simple argument from morality to law can be a dangerous non sequitur.... 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... The trouble with freedom is that it will be used in ways we abhor. It then takes great self restraint to avoid sacrificing it, just this once, to another end. One may agree that it is immoral to treat a man according to his race or religion and yet question whether that moral preference deserves elevation to the level of the principle of individual freedom and self-determination. If, every time an intensely-felt moral principle is involved, we spend freedom, we will run short of it.”

Again, none of this is a defense of segregation, nor is any of it on the basis of Plessy. I guess there might be some way that Plessy fits in, but I'm struggling to think how.

But people point to Goldwater for the Plessy connection, so I guess I'll try to suss that out.
posted by koeselitz at 5:18 PM on December 20, 2012


I remember Birk. I Canon say anything nice about him. He was over all, not a good man.
posted by Katjusa Roquette at 5:45 PM on December 20, 2012


That's how he finally felt about the Civil Rights Act.

That's what he said publicly about it. What he finally felt about it is an entirely different matter.
posted by asterix at 6:05 PM on December 20, 2012


koeselitz

The conversation seems to have progressed beyond direct reference to Kennedy's claims, so this may not even be relevant... but I don't think the claim that "blacks would sit at segregated lunch counters" must be squared with Bork's opinions on segregation in services provided by the government (as in Brown v. BOE), nor even with his opinion on state-mandated segregation in public accommodations.

The only matter at issue is his opinion on the Civil Rights Act, which forbade public accommodations from practicing segregation and discriminatory behavior. If it had not become law, or had been swiftly enjoined and overturned, segregation would probably have persisted throughout the South for years longer, and other forms of discrimination would probably persist unpunished even today.
posted by The Confessor at 6:07 PM on December 20, 2012 [3 favorites]


Actually, I'm starting to see what might have happened, I think – this is really just my feeling from watching interviews with Goldwater and from reading more in Bork's 1991 book, so who knows, but it's a suspicion anyway:

Robert Bork's positions on Brown did in fact evolve. In an interview here, Goldwater makes the interestingly tortured claim that the Supreme Court had no right to tell the states what to do because Brown stated that segregation was unconstitutional but "didn't spell out what was to be done." In Bork's 1991 book, he makes a different argument that has points of similarity. He claims there (as I quoted above) that Brown v Board was monumentally important, but that it was hampered by a "weak opinion" that talked about self-esteem of students instead of what it should have talked about: the fact that Plessy v Ferguson was a failed interpretation, and that, in order to hem to the original (here's his originalism) intent of the 14th (which was equality) Plessy must be struck down. Bork claims that the "weakness" of the opinion in Brown led to all sorts of problems, and basically produced a long decade of confusion and misunderstanding as far as how it was supposed to be applied. He basically says that the opinion didn't actually say that segregation was to be struck down, and when and how this was to occur, so there had to be dozens of test cases actually striking it down; and he complains that these test cases referred blindly to Brown v Board without noting that there wasn't actually any precedent in the opinion to point to at all.

So my theory is this – at the time, I think Robert Bork felt that Brown v Board of Education actually hadn't effectively struck down segregation; or at least that it was very vague about it. And in the face of that, he decided that the Court hadn't given the state any power to legislate against segregation at all.

In Goldwater's mealy mouth, this is made vague and obscure, but even on Bork's end it can't have been that coherent.

And I think it might be fair to say – he was a segregationist. Or at least I'll say this: he seems to have argued that Brown v Board of Education did not strike down segregation. This is a very weird position to take. Goldwater also says something else that's odd and interesting in that interview I linked above: he says that the Supreme Court isn't the law of the land, the Constitution is. I'm not sure this came from Bork, but if it did, it echoes a whole lot of conservative arguments since. And it's two-faced and obnoxious. The Supreme Court is the supreme interpreter of the constitution. That is what they do. That is what the constitution says they do.

Anyway, this is all a bit arcane. Suffice it to say that Kennedy might well be right. And that's something that's worth remarking on.
posted by koeselitz at 6:26 PM on December 20, 2012 [1 favorite]


segregation would probably have persisted throughout the South for years longer

Oh, make no mistake about it; segregation wasn't going anywhere. The amount of state violence marshaled against the forces of integration would have seen to that. Remember, this was in a climate where men like James Eastland and other Southerners raved about "niggers" on the floor of the US Senate, where a man attempting to register to vote was gunned down in broad daylight by a state legislator in front of dozens of witnesses with no retribution, where George Wallace was threatening to kill any black man that crossed him, where Lester Maddox stomped around with a pistol in his hand, where powerful men in the community were bombing churches and dragging people out of their homes and cars and lynching them and getting found not guilty by the men who helped them do it. And of course the dogs and firehoses and other TV fare. The silence bought by the systematic state violence was deafening, as it was intended to be.

And also don't forget that honest-to-god chattel slavery was still being practiced across the South until after WWII, just in the guise of "debt peonage". Men bought and sold in the courthouse after being arrested on the request of local businesses who notified the sheriff that they needed labor. And if you tried to leave the state to emigrate to Chicago or other points north, you'd get arrested for that, too. Their economy depended on free black labor.

The constitutional stuff, like that ever-popular phrase "state's rights" was just a smokescreen for the real action. Mississippi and Alabama were honest-to-god police states at the time. Ironically so, when Southerners who were decrying integration as the actions of a police state. They would be segregated today if the Feds hadn't acted.

How much of this Goldwater, or Bork, understood is difficult to say. It was obvious to anyone with eyes in their head by 1964 that something very, very wrong was going on in the Deep South, but conservatives aren't the only people to suffer from occasional wilfull blindness.
posted by Fnarf at 7:03 PM on December 20, 2012 [6 favorites]


late to this but
I recall watching the televised confirmation hearings in 1984 and thinking at the time that it was no way to confirm a justice to the Supreme Court. The whole episode did not cast America in the best light.(three_blind_mice)

In 1984 I was a newcomer to the USA, and listened to the confirmation hearings on the radio. To me, they shone a bright light on America's strengths, and were among the things that convinced me to make my life here. I'm glad he's gone, too.
posted by anadem at 7:07 PM on December 20, 2012 [2 favorites]


towering intellect? maybe; but certainly an ethical midget.
posted by liza at 7:41 PM on December 20, 2012


Goodnight, funnyman
posted by Renoroc at 8:16 PM on December 20, 2012


Bork's most lasting legacy is the virtual neutering of anti-trust law. He turned the Sherman Act away from breaking up too-big companies and replaced it with something that he claimed was consumer value. Except his definition of consumer value was that a big company wouldn't be so big if it didn't provide consumer value. This philosophy fits with the conservative Calvinist belief that financial success itself is proof of virtue. It is a sign of God's providence.

His sorry life progression can be seen in his book titles:

The Tempting of America
Slouching Towards Gomorrah: Modern Liberalism and American Decline
Coercing Virtue: The Worldwide Rule of Judges
and finally
A Country I Do Not Recognize

Yeah, he was ready to die.
posted by JackFlash at 10:39 PM on December 20, 2012


Yes, it is the upholding of a company's right to force women to choose between sterilization or losing their jobs that turned him into the face of evil for me. Thank goodness we can look back to that time and realize how much progress we have made. So for nothing else I'm glad that his death makes me reflect on how far Women's Rights has come.
posted by Secret Life of Gravy at 6:47 AM on December 21, 2012 [1 favorite]


A collection of quotes for all those who think Bork had a "towering intellect."

He was an awful, awful person and that "intellect" was always used in the service of hatred.
posted by WorkingMyWayHome at 9:35 AM on December 21, 2012 [3 favorites]


Man. I am ashamed that I tried to rehabilitate this guy. I guess I stand by my initial statement that I'd prefer constitutional amendments for most major advances in civil rights; but Robert Bork is a scoundrel, and doesn't deserve defending.

Sorry, all.
posted by koeselitz at 9:44 AM on December 21, 2012 [3 favorites]


It was an interesting discussion, though; I thank you for that.
posted by WorkingMyWayHome at 10:49 AM on December 21, 2012


Man. I am ashamed that I tried to rehabilitate this guy.

So why did you even try, or want to try? I don't get this , as you put it, "strange sense that the ideas that the dead held in life deserve a little rehabilitation". No they don't. People like Bork didn't just mess up once, they dedicated their entire lives to evil ends. The world is a worse place for Bork's existence; we are still suffering from his poisonous stain on the judiciary. I recall people trying to do the same in the Lee Atwater obituary thread (though at least Atwater said he regretted it at the end; Bork never did.)

Bork promoted intellectually vacuous nonsense that provided cover for harm and oppression of many people. He used the figleaf that libertarians always use: oh, I don't believe in segregation or oppression myself, I'm all for liberty which happens to invariably result in that. But what can I do?

You build your legacy and it follows you to the grave. If you live a monster you remain one dead. Fuck this "respect the dead" bullshit. People should be remembered for what they were and what they advocated. Let the conservative or libertarian revisionists try to defend their hero.
posted by Sangermaine at 11:22 AM on December 21, 2012 [2 favorites]


Robert Bork is a scoundrel, and doesn't deserve defending.

I'd have preferred Bork to Scalia, though. I think Bork was, maybe more honest, certainly wouldn't have had a worse voting record, and would be off the court now.
posted by tyllwin at 11:33 AM on December 21, 2012


Sangermaine: “So why did you even try, or want to try?”

Partisanship is an ugly disease, and trying to understand why people think what they think is a worthy goal. "He disagrees with me, so fuck him" was not enough for me.
posted by koeselitz at 12:47 PM on December 21, 2012 [2 favorites]


(Also, as I made clear above, I agree with him on certain things, as weird as that may seem.)
posted by koeselitz at 12:50 PM on December 21, 2012


From the quote compendium linked above:

One evening at a hotel in New York I flipped around the television channels. Suddenly there on the public access channel was a voluptuous young woman, naked, her body oiled, writhing on the floor while fondling herself intimately…. I watched for some time–riveted by the sociological significance of it all.

...

A lot of people comfort themselves with the thought that this is confined to the black community, but that’s not true — some of the worst rappers are white, like Nine Inch Nails.


The intellect, it towers.

Sociological significance!
posted by spitbull at 1:20 PM on December 21, 2012 [2 favorites]


Partisanship is an ugly disease, and trying to understand why people think what they think is a worthy goal. "He disagrees with me, so fuck him" was not enough for me.

But this is the falsity I hate: I'm an attorney, and so I've read a lot of what Bork and his disciples wrote. I've read their arguments and cases and articles and the writings and analyses exposing those arguments as empty and incoherent.

The point is, blind partisanship is bad, but there's this fear to say "fuck him!" even when you know full well what someone believes and does. There's this need to maintain this false piety and give the appearance of "objectivity". Sure, we should understand where our opponents come from, but there's no need for us to rehabilitate them or reach for a silver lining.

We shouldn't be afraid to call monsters monsters when they've shown themselves for what they are.
posted by Sangermaine at 1:50 PM on December 21, 2012 [3 favorites]


Sangermaine: “But this is the falsity I hate: I'm an attorney, and so I've read a lot of what Bork and his disciples wrote. I've read their arguments and cases and articles and the writings and analyses exposing those arguments as empty and incoherent.”

Yeah, I've read those writings and analyses too. Most of them are partisan crap. That's how it works.

“The point is, blind partisanship is bad, but there's this fear to say "fuck him!" even when you know full well what someone believes and does.”

Nobody here knows full well what Robert Bork believes and does. That's the point. This thread is full of blind partisanship. Blind partisanship is basically the natural form of American politics. Most of Robert Bork's writings are blind partisanship; so are most of the writings of his enemies. There's not much there there.

So it requires some struggle and some contemplation to sort this out.
posted by koeselitz at 2:11 PM on December 21, 2012


This thread is full of blind partisanship.

I wouldn't go that far. People have been posting actual data points for their conclusions, and pretty damning ones at that. Doesn't seem entirely "blind" in light of that.

And you're right; on a greater level, we cannot know every thought that passed through Bork's brain. But he did leave behind a legacy of opinions and beliefs that he chose to share with the world. That's the evidence we have. And that evidence, to me, doesn't paint a really great portrait of the guy.
posted by Marisa Stole the Precious Thing at 2:46 PM on December 21, 2012 [1 favorite]


Knee-jerk contrarianism is a tactic of lazy poseurs for attracting attention.

Sorry. Nobody is impressed.
posted by JackFlash at 5:51 PM on December 21, 2012 [3 favorites]


Dixieland music had real themes to it, had often a very complex musical form. The music of today, a lot of the stuff we’re talking about rap seems to be nothing but noise and a beat without any complexity or without any I don’t understand why anybody listens to it.

Dixieland? Dixieland?! Oh my lord. I'm pretty sure that white men in blackface play Dixieland in hell relentlessly so Bork should be as happy as a pig in dogshit right about now...
posted by Secret Life of Gravy at 8:50 AM on December 22, 2012 [2 favorites]


It is pretty difficult for me to imagine a worse form of music than Dixieland. Dixieland with every instrument played through autotune maybe?
posted by Marisa Stole the Precious Thing at 1:14 PM on December 22, 2012


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