PLANK DECEMBER 19, 2012
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In the summer of 1987, right out of college, I was a summer intern for Senator Joe Biden, who was chairing the Robert Bork confirmation hearings. My contribution to the epic battle was modest: I helped with research for a speech on the history of the confirmation process, in which Biden argued that the Senate had the duty to scrutinize not only the legal qualifications but also the constitutional views of nominees. This was a controversial proposition at the time; today it has been taken to extremes that neither Biden nor Bork, who died today at 85, could have imagined.
But even from the sidelines, as I celebrated Bork’s defeat, I remember feeling that the nominee was being treated unfairly. Senator Edward Kennedy set the tone with a demagogic attack. “Robert Bork’s America,” he said, “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, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans.”
Bork’s record was distorted beyond recognition, and his name was transformed from a noun into a verb. The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking. And it had obvious costs for Bork.
Before the hearings, Robert Bork had been renowned at Yale Law School, where he taught for nearly two decades, not only for his influence on antitrust and constitutional law, but for his ideological open-mindedness: many students of his era fondly remember the seminar he co-taught with his closest friend on the faculty, the liberal constitutional scholar (and TNR legal editor) Alexander Bickel, which featured affectionate bipartisan debates. After Bickel criticized his conservative jurisprudence in one class, Bork replied, “You’ll notice that my colleague’s elegant theories of jurisprudence are a cross between Edmund Burke and Fiddler on the Roof.” TNR was said to be Bork’s favorite journal at the time, and in 1968 he wrote a piece for this magazine, “Why I Am for Nixon,” praising the Republican presidential candidate as the true heir of classical liberalism.
After the hearings, he would become, in print at least, something of the caricature of legal conservatism that Kennedy had painted. But he remained friendly and convivial in private: Whenever I ran into him and his devoted wife, Mary Ellen, over the years at holiday sing-alongs, he loved to discuss his old friend Bickel over scotch. Although the hearings had left Bork professionally embittered, he remained personally gracious.
Then came the Borking of Clarence Thomas, with a similarly sad result: The transformation of another convivial conservative appellate judge, who had a record of friendly interactions with liberal colleagues on the U.S. Court of Appeals for the D.C. Circuit, into an angry partisan, determined to seek ideological revenge for decades to come. And then both parties wised up and decided, for strategic reasons, to avoid future Borkable nominees. That resulted in nominees without a significant paper trail on controversial constitutional questions—nominees like John Roberts and Samuel Alito and Sonia Sotomayor and Elena Kagan, all of whom seem to have measured every word since law school in an eerily prescient effort to avoid being Borked. And despite their professional distinction, these justices lacked the clearly identifiable judicial philosophy that allowed Bork not only to galvanize the right but also to transform America’s legal debate so that liberals as well as conservatives now have to take seriously arguments about the original understanding of the Constitution. Next to Antonin Scalia, Bork did more to put constitutional text and history front and center than any other judge in America. So if Learned Hand was one of the most influential progressive judges never to sit on the Supreme Court, Robert Bork was one of the most influential conservatives never to do so.
What will the future bring? More opaque, un-Borkable nominees, more polarization, more unfilled judicial vacancies (unless the filibuster gets exploded, leaving even more partisanship in its wake). And less of the values that Bork represented at Yale: bipartisan debate, intellectual experimentation, and a willingness to cross ideological lines. It’s a good thing that the man who Bork became after his defeat wasn’t confirmed to the Supreme Court: If he, instead of Anthony Kennedy, had been the swing vote between 1987 and 2012, America would indeed have been a more illiberal place. But it’s bad for the country that Bork was Borked in the way he was. American courts, judges, and constitutional law have been paying the price for the past twenty-five years, and the future looks even more bleak. That’s a grim form of payback in which the mordant Bork might have taken some gloomy, if grudging, satisfaction.
Jeffrey Rosen is the legal affairs editor of TNR.
43 comments
And now another article from a 'very serious person' that mistakes civility for policy. Whatever price Washington paid for having its feelings hurt from descriptions of what Bork's beliefs actually meant is a small price to pay compared to what the nation would have endured with a man as extreme as Bork on the court. He was voted down by a 58-42 bipartisan majority. He only won 5 of 16 votes on the Judiciary Committee. He was overwhelmingly rejected as not worthy of the court. How many decisions (Planned Parenthood v. Casey, for one) where Kennedy was the swing vote to a more sensible outcome would have gone another way with Bork on the bench? And why must we pretend the Supreme Court confirmation process was smooth sailing beforehand? Do the names Fortas, Haynsworth and Carswell mean nothing to Mr. Rosen? Mr. Bork was the most extreme nominee in 100 years, and his own legal writings proved it: calling the Civil Rights Act unconstitutional and advising Goldwater to reject it; endorsing the poll tax, supporting a greatly narrow understanding of the 1st amendment and no right to privacy whatsoever. What ever serious people want to pretend, Kennedy's infamous prescription of 'back alley abortions' is absolutely true: In a world without Roe v. Wade and with bans on abortions, that's the result. What this article seems to argue is that it's more important for Supreme Court justices to have outrageous beliefs or make good quote copy than have reasonable judicial beliefs. It's the same 'Cult of Scalia' you get in other judiciary reporters. And it's the same damn thing: Law, like politics, isn't a game. It matters. And I'm glad I don't live in Robert Bork's America, no matter what beltway hacks think is more interesting.
- Crock1701
December 19, 2012 at 1:16pm
I guess we'll just not mention Bork's role in Watergate.
- subterra
December 19, 2012 at 1:54pm
To paraphrase Bette Davis... You should never say bad things about the dead, you should only say good. Robert Bork is dead. Good.
- zardoz67
December 19, 2012 at 2:05pm
The death of anyone is certainly a time for quietude and reflection. Bork was a totemic figure for conservative law scholars and the conservative legal movement. Still, why should Bork's passing obscure the fact that blocking his elevation to the SC was best for the country, certainly for women and for those of us who wish for a sensibly moderate to liberal SC approach to jurisprudence. The Democrats and particularly Senator Kennedy fought a much needed battle and yes, it was messy - and it did change the confirmation process - but this was a small price to pay for the alternative: Robert Bork on the SC for the past 25 years. America is a better place without A Robert Bork SC era and though it is certainly respectful to pay tribute to a man who was undeniably accomplished in his field, why should we pretend that nixing his SC nomination was, in retrospect, wrong? It was absolutely the correct thing to do with his nomination. I am eternally grateful to Ted Kennedy and the 58 senators who voted against his elevation to The Court and his death does not alter that assessment in the slightest.
- MrCookie1
December 19, 2012 at 2:17pm
After Bork we got top-flight jurists of all ideological stripes (conservative - Roberts, moderate - Souter, liberal - Ginsberg/Kagan). We also got..."nondescript" (Thomas/Sotomayor). Leadership makes a greater difference than whatever post-Bork political realities are described here.
- Lymon1
December 19, 2012 at 2:19pm
12/19/2012 - 1:54pm EDT | subterra I guess we'll just not mention Bork's role in Watergate. ....One of Bob’s most important services to our country is also one of the most misunderstood, during the “Saturday Night Massacre.” When Nixon gave Attorney General Elliot Richardson the order to fire Watergate Special Prosecutor Archibald Cox, Richardson resigned, as he had committed to do in his Senate confirmation hearings if the White House ever tried to interfere with Cox’s investigation. Deputy AG William Ruckelshaus also resigned, as he had similarly pledged to do. By virtue of these resignations, Bork, the third-ranking official at the Department of Justice, became acting attorney general. Although he had been confirmed before the Watergate affair had become an issue, and never been asked to make such a pledge, Bork told Richardson and Ruckelshaus that he thought he should also resign. They urged him not to, because then the entire top leadership of the department might have followed suit, and the country plunged into a constitutional crisis the likes of which we had never seen. Richardson and Ruckelshaus urged him to fire Cox to preserve the legitimacy of the office. Said Richardson: “You’ve got the gun now, Bob. It’s your duty to pull the trigger.” Bork did fire Cox, and paid for it the rest of his life.... -------------------------------------------------- 12/19/2012 - 2:05pm EDT | zardoz67 ...To paraphrase Bette Davis... You should never say bad things about the dead, you should only say good. Robert Bork is dead. Good.... Hey a trifecta, ghoul, schmuck and asshole.
- basman
December 19, 2012 at 2:20pm
Anyone who thinks that the "Borking of Bork" was the beginning of the politicization of the confirmation process does not remember Abe Fortas or has suppressed the memory.
- sjberke1
December 19, 2012 at 2:32pm
...The death of anyone is certainly a time for quietude and reflection... Amen to the spirit of that comment, brother.
- basman
December 19, 2012 at 2:44pm
I will forever be grateful to Bork. He is the reason I was cured of the malady of "originalism": his reasoning, so seductively simple, so simplistic at its core, appealed to my then untrained mind, especially to the practical, unphilosophical side of it. His orientation, radicalism garbed in soothing conservative-sounding bromides; his constitutional theory, bunkum if there ever was one; his socio-economic theories, such as they were, straight out of Herbert Spencer's Social Statics. I will not say ill of the dead; I can mock his moronic and misguided legal "philosophy". His impact on judicial thought was and remains nefarious; good thing he never made it to the real bench.
- icarus-r
December 19, 2012 at 3:11pm
Would be a fine time to put up his 1963 article for TNR.
- SEBASTIANSALING@HOTMAIL.COM
December 19, 2012 at 3:33pm
basman, I regret nothing. No matter how "friendly and convivial" Bork was in private, his public views were beyond the pale, and his influence has been disastrous for the country. I refuse to mouth false pieties on the death of a man I despise.
- zardoz67
December 19, 2012 at 5:03pm
Zardoz67 Tell me what specifically of his academic career causes you to dance on his corpse. What of his judicial decisions do you such specific exception to such that you dance on his corpse.
- basman
December 19, 2012 at 5:11pm
basman, Jeffrey Toobin explains it more succinctly than I could: http://www.newyorker.com/online/blogs/newsdesk/2012/12/postscript-robert-bork-1927-2012.html "In 1981, Ronald Reagan nominated Bork to the United States Court of Appeals for the District of Columbia Circuit, and then, six years later, to the Supreme Court. To his credit, Bork gave honest and forthright answers to the questions posed by the senators on the Judiciary Committee, which was led admirably by then Senator Joseph Biden. Much of the questioning focussed on Bork’s long-held belief that the Constitution does not include a right to privacy. As one of the creators of the “originalist” school of constitutional interpretation, Bork asserted that since the framers did not use the word “privacy,” that value was not reflected in our founding document. Accordingly, he opposed such decisions as Griswold v. Connecticut, which said states could not ban married couples from buying birth control, and Roe v. Wade, which prohibits states from banning abortion. He promised the senators he would reflect those views as a Supreme Court Justice."
- zardoz67
December 19, 2012 at 6:41pm
Is this best you could do no doubt frenetically combing thru the Internets? So this is why you're glad he's dead, because he held views, in good faith and principled by his lights, different from yours, but widely shared by many in good faith and principled by their lights, even though he was genuinely admired by his students, had written, apparently, a leading text on anti trust laws, was understood to be and respected by many as a scholar, had a big impact on American constitutional theory and even went so far as "To his credit, Bork gave honest and forthright answers to the questions posed by the senators on the Judiciary Committee." Your glee at his death and your hatred for him are as macabre as they are weirdly disproportionate. I might suggest you be more stinting and discreet in the parceling out of your despisings? Do you despise those, and wait with baited anticipation for the deaths of those, many who shared Bork's views? Do you think Toobin despised Bork and thinks it good that he's dead? No doubt Zardoz67 you have no regrets in this, all the more telling as to what a really strange spectacle your bizarre self righteousness is. Happy holidays pal.
- basman
December 19, 2012 at 8:30pm
Don't be wrong. You will never be forgotten or forgiven. For example, Elizabeth Bathory and H H Holmes, two people whose names spring instantly to everyone's lips when I mention people to forgive and forget.
- skahn
December 19, 2012 at 8:36pm
Robert Bork is the godfather of "originalism." He is the fountainhead for all the poor decisions made by the Supreme Court (and the lower courts) for two decades. He was for the poll tax, against the Civil Rights Act, opposed antitrust law, and did not believe women were a protected class under the 14th Amendment. His views on privacy were the most dangerous, because of how it would have undermined the rights to contraception and abortion, and would have set back the cause of gay rights for a generation. The fact that many of these views are held by the current crop of Tea Party Republicans shows just how pernicious and ubiquitous his influence was. As Shakespeare said, "The evil that men do lives after them; The good is oft interred with their bones". Bork's views are evil and indefensible. The fact that you are trying to defend them, basman, says more about you than my glee says about me. And if you think this is disproportionate, just wait and see what invective I will hurl once Margaret Thatcher has finally popped her clogs.
- zardoz67
December 19, 2012 at 9:50pm
I don't know, basman: it seems to me that besides originalism, Bork articulated the legal shift in antitrust law that helped the deregulatory and mergers & acquisitions snowstorm that characterized the 1980s. I can't say that this was a net benefit to the country, as the entire point of democratic capitalism is to promote genuine competition, which cartelization, oligopoly, and the regulatory capture that follows completely subverts. (See various industries, most notably, banking and finance.) Of course, he was only one man, but the fact that his anti-antitrust crusade dovetailed so well with his convenient legal theoretical framework that would have ruled the Civil Rights Act unconstitutional and toppled Roe v. Wade is quite a sight to behold. Or to be thankful that we didn't have to behold quite so closely. This is the kind of man who seems tailor-made to the deep corporatist Republican strategy that is a natural extension of Lewis Powell's memo urging rich corporatists to spend whatever necessary lobbying the government to represent their interests to the exclusion of the hundreds of millions of American citizens that they swear oaths to serve. So while it is of course unseemly to exult in the death of a non-evil individual, it is wholly within one's propriety to lay out the good with the bad, even if an appraisal shows there to be little good in the substantive footprint the man left in the public sphere.
- chaitless
December 19, 2012 at 10:26pm
...So while it is of course unseemly to exult in the death of a non-evil individual, it is wholly within one's propriety to lay out the good with the bad, even if an appraisal shows there to be little good in the substantive footprint the man left in the public sphere... Chaitless, I couldn't agree more with these words. Those on this thread who were somber or respectful or who at least didn't jump for joy at his death, who, as you put it, didn't "exult" in it but then went on to assess his public work however negatively get no argument from me. All that, I never meant not to suggest, is appropriate.
- basman
December 19, 2012 at 10:48pm
Add my name to the list of people who are glad not to have lived in Robert Bork's America.
- Tobbar
December 20, 2012 at 11:01am
I draw a different conclusion from the Bork nomination. Instead of this being an over-reach by liberals, I think it was be beginning of decades of over-reach by conservatives. Bork was the guy who termed the Orwellian term "Originalism" -- on the face meaning "original text", but in effect meaning "whatever I think is right". True, Clarence, Scalia are in that same mold. But that's because the Conservatives who appointed them WANTED ideologue's on the Supreme Court. This was the beginning of the great divide in American politics -- Conservatives doing increasingly partisan and ridiculous things in pursuit of destruction of the New Deal. Newt Gingrich pursued this, and McConnell and Boehner are the latest in a short string of Conservatives asking for compromise, but unwilling to actually accept it. This isn't "both sides" fault, and it's certainly not liberal's fault -- they've been dragged pretty far right in the process.
- AllanL5
December 20, 2012 at 11:25am
Basman: This from Noah Millman (of the American Conservative):
http: //www.theamericanconservative.com/millman/bork-and-the-evolution-of-american-conservatism/ It is rarely necessary to dance on the grave of anyone, and thankfully by the time of his death Bork was not significant enough for one to both much about his passing. I wrote a paper on his legal thinking, or "thinking" twenty-odd years ago; I cannot remember every piece he wrote with which I disagreed, or every position he advanced that seemed noxious to me, nor is he important enough for me to search the internet to justify my ongoing dislike of him and all he represented. Suffice it to say that originalism, as he propounded it, rests on very weak constitutional, legal and philosophical grounds - assuming it is advanced in good faith. With Bork, and Scalia, it is not. There was, and is, no good faith in their reliance on "originalism", because their philosophy, such as it is, adjusts itself situationally depending on the outcome. This sort of legal charlatanism is, of course, perfectly fine in academia, or on the boards of TNR; for an aspirant to the SCC, and especially someone who advocates turning the judicial clocks back 80 years, it deserves condemnation and not pussy-footing.- icarus-r
December 20, 2012 at 11:58am
Let us conduct a thought experiment, that might allow us to leave today's passions behind. Let us imagine that Bork was a capable and original man who was sometimes wrong about things, sometimes right about things and sometimes both a little wrong and a little right, but a decent man of goodwill, like most of us. And a man able to influence others, as he had already shown. The question is not whether it was better to defeat his nomination. The question is whether it is better for all of us that such people be demagogued in the coarsest fashion in order to defeat and discredit them. To, in Yeats's phrase "hurl the little street against the great." How easy it would be to pastiche "Robert Bork's America." One could do that to anyone. "Alexander Hamilton's America. Thomas Jefferson's America. Heny Clay, John Calhoun, Daniel Webster. Theodore Roosevelt, Howard Taft, Woodrow Wilson" One could easily make any of these into a hobgoblin, and they all had ideas that were dangerous, unbalanced or even perhaps despicable in today's lights. But the nation was built on their dialogues, innovations, compromises and defeats. To so demagogue an academic as to discredit him for life for partisan gain, whether right or left, not based on his actual beliefs, but based on demagogic distortions is just bad for the level of our common dialogue. It raises the cost for originality and controversy, out of which new ideas develop. Our current policy ideas, from both sides, seem old and stale. Borking sent a message to the ambitious to shut up, which they have not failed to heed. Democracy is based on the insight that no one is completely right about everything. in my life the Left had more truth about Civil Rights, the right had more truth about Communism, but neither was completely right about even the things they were rightest about. The dialog helps us to grow and become more complete, individually and as a nation. Robert Bork, before his borking, was about that democratic tradition -not because it gave him power to compel other people, but because it led to creativity, insight and growth. Sending the howling jackals against him did keep him off the court, but it did collateral damage in closing off openness and dialog. Both sides are now, sadly, living in Ted Kennedy's America.
- homeros
December 20, 2012 at 2:48pm
"Let us imagine that Bork was a capable and original man who was sometimes wrong about things, sometimes right about things and sometimes both a little wrong and a little right, but a decent man of goodwill" I lack such soaring and, frankly, ambitious imagination. Let us instead see Bork for what he was, rather what one imagines him to be. I am always amused when someone, talking about civility, openness and dialogue, refers to the opposition as "howling jackals". The man wanted to get on the Supreme Court to, in his own words, turn back the constitutional clock to 1789. He made a concession to Brown, but that was because not to do so would have sunk him even faster. His judicial philosophy was one of charlatanism; his post-nomination career that of an intolerant anti-democrat. You do him injustice by painting him as a cuddly bear done wrong by. He was a warrior, as is Scalia; his weapon, the law and jurisprudence, his target liberal society. He was a radical revolutionary, aiming to overturn a century of jurisprudence in the name of tradition. Given the man his due.
- icarus-r
December 20, 2012 at 3:07pm
Ick, if it's possible I'd be interested to read your paper if you can get it to me by attachment, faxing, snail mail whatever. Here's the email address to send it to, itzikbasman@sympatico.ca. And if you need it send me a note there and I'll give you my address. I'm not about here on this thread to relitigate originalism, that having been done a few times, and not that long ago, on other threads at TNR. I think originalism is a defensible position, now being utilized by liberal legal thinkers like Jack Balkin. And I think Breyer's "active liberty" type of analysis, which, at its worst, can be hodge podgey, is no less capable of rationalizing outcome based legal results. Maybe some time when you're in Toronto again we can hash this out some over a beer or caffeine based beverage of your choice, or in some other way, some time. Love to do that. To be clear I'm no student of, fan of, acolyte of, or anything else of, Bork, whose philosophical cum legal ideas led him I think to some bizarre legal conclusions, but they weren't evil and and my simple and I thought uncontroversial point, was precisely the grotesque unseemilness in gloating over his death. ____________ Zardoz12 before you start pissing yourself with joy when Thatcher dies you might wish to understand that Bork was neither racist nor misogynst. The positions he took were based on a view of the court's limits based on his constitutional theory. His position was that these issues for the legislature to decide, a position decidedly not evil. Beginning to describe good faith and principled positions as evil, for all of any vigorous disagreement with them, is the seeds, if you will consider it further, of a totalitarian cast of mind, let alone betraying such an attenuated conception of evil that it will become as widely used and as unhelpful as casting indiscriminately the word racist, anytime someone wants how loaded its emotional effects trumping thought itself.
- basman
December 20, 2012 at 3:27pm
Caffeine or alcohol - either works. Let me see if I still have the paper - been a long time. I will send you the article I published in 1998 on judicial philosophy. "And I think Breyer's "active liberty" type of analysis, which, at its worst, can be hodge podgey, is no less capable of rationalizing outcome based legal results." All legal analysis is outcome-based, within defined parameters. Originalism is charlatanism to me because it gives a veneer of veneration of Founders and of disinterest to the judge to achieve results that are no more pre-ordained than what I am eating tomorrow for breakfast. Of course Bork or Scalia don't give a rat's ass to what Madison thought of the Fourth Amendment - or else the national security state would be dismantled. John Marshall, as close to the founders as you could get, turned the US Constitution on its head in Marbury, and not one of the Founders peeped. "The positions he took were based on a view of the court's limits based on his constitutional theory." Unless you knew the man, this is supposition. You can argue that he argued that he justified his positions based on a constitutional theory that, in select circumstances, happened to give rise to conslusions he liked. Anything more affirmative than that is not really sound. And the same goes with good faith. Now, I fully confess that Scalia holds his execrable social views in good faith. I am equally convinced that his views on originalism are not held in good faith - they are the judicial fig leaf that make him, as a Justice, sound not totally deranged. "His position was that these issues for the legislature to decide, a position decidedly not evil." But, in fact, his economic positions are the exact opposite of that. Lochner is the anti-thesis of legislative supermacy. The problem with Bork, as with any originalist, is that they are selectively so. And, of course, whether a batch of issues is left to the legislation or not, depending on the legislature, may mean the difference between freedom and tyranny.
- icarus-r
December 20, 2012 at 3:41pm
@ Icarus ...All legal analysis is outcome-based, within defined parameters... This suffers from imprecision. It might be read, and I don't you think you mean it this way, as a circular truism: because adjudication leads to results, all legal analysis is outcome based. What I think you mean, and what I' talking about in any event, is realist type legal theory, which holds that legal reasoning is the pretext in all, or most, cases of what judges want to do as a matter of their personal biases, predilections, class interests, or whatever the underlining analysis is. In fact legal positivism is a good account, I think, of most adjudication. Most cases are decided analytically based on a proper application of legal rules and principles to sets of facts. Harder cases, and they get harder the more they descend up the appellate ladder, are comprised by competing values, virtually impossible to analytically resolve, and here I think Dworkin is wrong, and will be decided along realist lines. Originalism is quite telling in the lower echelons of easier cases, and it is no more capable of rationalizing desired results than any other constitutional theory, I'd contend. ...Unless you knew the man, this is supposition... I take your point up to a point. But then the good faith of those opining and deciding is usually unknowable in the sense you mean because it is rare when when we can see into people's minds, hearts, souls. So it's then in most cases a supposition or, as I prefer to think of it, a judgment. So from what little I've read about Bork, his being principled and acting according to them in good faith seems a reasonable enough judgment. As a bit of maybe microcosmic evidence consider Zardoz67's quoted bit from Toobin about Bork being candid and truthful about his then unconventional constitutional theories. There's a strong line flowing from what he thought and believed to the legal conclusions he reached that seem consistent with him being principled. As to his economic positions being inconsistent with his view in other matters of according to the legislature and to the court their proper domains, I'll check that out some and get back to you as a matter of interest. I have no stake in defending him as such.
- basman
December 20, 2012 at 4:36pm
"Most cases are decided analytically based on a proper application of legal rules and principles to sets of facts." When a client comes into your office with a story, within three sentences you have a sense of how it will play out. It is because some of those principles you talk about - the parameters I talk about - have by now been hard-wired in your thinking. But it is also about how you, as a person, relate to the story, to the client and to the judicial system. I don't think judges are immune from our personal histories. I am willing to bet you that if we put Doug Christie and you on the bench, in respect of 90% of cases you and he will arrive at different outcomes - even applying the same rules. That is why a reasoned dissent is possible to begin with. I am not a CLT nihilist. But you read too much of the human out of the reasoning process. Even a computer spits out outcomes based not just on the input data, but on the underlying algorithm. Originalism pretends to transfer all of that responsibility onto the shoulders of the Founders - mythical, not real, Founders, because there were no such things as Founders, but individual humans, driven by different motivations; inchoate and undefineable except in overly broad (all the legislators of the colonies) or unreasonably narrow (Jefferson and the gang) terms. Originalism is the Biblical literalism of politics. It gives the impression of certainty and solidity to something that is by definition a child of messy compromise and begetter of confusion.
- icarus-r
December 20, 2012 at 4:53pm
From Slate: http://www.slate.com/articles/news_and_politics/jurisprudence/2012/12/robert_bork_s_death_learning_from_him_and_proving_him_wrong.html "Over the ensuing 30 years, I have devoted my career to proving, clause by clause, historical fact by historical fact, that faithful adherence to Bork’s approved methods does not invariably lead to Bork’s politically conservative conclusions. In fact, I’ve tried to show how many of the methods Bork claimed to embrace often support results precisely contrary to the ones Bork reached." The Author: "A Legal Affairs poll placed Amar among the top 20 contemporary US legal thinkers." Not to say I agree with him, only that I am not surprised at his findings about the historical Constitution. I am not a convert to originalism now that there is a prof who found it leads to liberal outcomes.
- icarus-r
December 20, 2012 at 5:21pm
I'm virtually running out the door but just wanted to say further precision is in order essentially to refine my own comments. The doctrine I want to defend is textualism, of which originalism is a small subset. Textualism rests not on the founders but on the conviction the text is all. Helpful to understanding what a sturdy insight this is to think analogously about the New Criticsm, which rests on an oddly similar theoretical foundation and makes a great deal of sense. More anon.
- basman
December 20, 2012 at 5:26pm
Basman, I'm sorry to say it, but a man who opposes the Civil Rights Act of 1964 in the name of originalism is indeed a racist. Remember that Radical Republicans crafted and passed the 13th-15th Amendments. They passed Civil Rights Acts in the 1860s and 1870s that held constitutional muster until a narrow and, frankly, racist reading of those very amendments by a decidedly unvisionary Supreme Court subverted their effectiveness, even though they naturally flowed out of the 14th Amendment, most specifically. The failure to read any privileges and immunities into the clause and the determination to strip the government of guaranteeing them to an oppressed minority is easily understood today as racism befitting the prejudices of the times. But in 1960? In 1987? It's just frank racism. No doubt about it.
- chaitless
December 20, 2012 at 8:53pm
So Bork was not a racist or a misogynist, but his views would have supported racism and misogyny. I call that damning with faint praise. Also sounds like Bork was engaging in sophistry.
- zardoz67
December 20, 2012 at 8:54pm
Zardoz67: I'm the in the U.N. with a veto and there is genocide going on in country x. I argue in goodmfaith because of my principled belief in the doctrine of the relative imviolability of sovereignty the U.N. cannot intervene, although I abhor genocide. So the genocide continues in the result. Say I think the constitution doesn't protect a woman's right to abort her pregnancy and so I don't strike down state laws banning abortion, even though I personally believe in a woman's right to choose. So on your reasoning my views support genocide and women going into back alleys with coat hangers or whatever; my reasoning is but sophistry; I'm evil; and when I die you'll chortle with glee and dance on my corpse. You fallaciousy reverse engineer any result which you don't like back to a necessary evil nexus to views, which, if looked at carefully and objectively, may have no morally causal relation to that result, as in my example. Pretty bad thinking in my books. ______ Chaitless I'll try to answer you in a separate comment.
- basman
December 20, 2012 at 9:42pm
I don't know much about this but from Wiki fwiiw, "Bork had more success as an antitrust scholar, where his once-idiosyncratic view that antitrust law should focus on maximizing consumer welfare has come to dominate American legal thinking on the subject."
- basman
December 20, 2012 at 9:45pm
To Zardoz67 on the poll tax issue from Pejman Yousefzadeh: ...Ignoring the mindless vituperation of the first paragraph and skipping to the second, let’s get to the claim about poll taxes first. As Ethan Bronner points out (pp. 224-25), in Harper v. Virginia Board of Elections, the Supreme Court ruled that poll taxes violated the rights of poor citizens under the Equal Protection Clause of the Fourteenth Amendment. Bork’s critique of the Court’s ruling was that the Equal Protection Clause was designed to prevent racial discrimination, not economic discrimination. Bork’s objection was not “poll taxes are awesome and we should not only keep them, but expand them,” as Toobin’s casual reference would seem to suggest. His argument against the ruling in Harper was more subtle than that. From the transcript of the Senate Judiciary Committee hearings: BORK: … I have no desire to bring poll taxes back into existence. I do not like them myself. But if that had been a poll tax applied in a discriminatory fashion, it would have clearly been unconstitutional. It was not. I mean, there was no showing in the case. It was just a $1.50 poll tax. This Congress had just recently drafted and proposed to the States and had adopted an anti-poll tax amendment to the Constitution which this Congress carefully limited to federal elections so as to leave State poll taxes in place if States chose to have them. That seemed to me a little odd, therefore, that the Court would come along and mop up something that Congress did not bother to amend the Constitution to accomplish. Not did not bother; deliberately did not. The poll tax was familiar in American history and nobody ever thought it was unconstitutional unless it was racially discriminatory. Now, in Harper itself Justice Black—who was hardly a man who was insensitive to voting rights—Justice Harlan and Justice Stewart all dissented from the majority holding. Justice Black said the Court was using the old natural law due process formula to write into the Constitution notions of what it thinks is good government policy. Harper overruled a prior case in which the majority had upheld the poll tax and in that case Justices Black, Frankfurter, Jackson and others upheld the poll tax. Archibald Cox has said, and I quote, “the opinion seems almost perversely to repudiate every conventional guide to legal judgment,” although he liked the result. I like the result too. I just do not see the legal judgment there. Alexander Bickel made much the same criticism. It is a decision that is hard to square with out constitutional history. So, a mainstream group of Supreme Court justices and legal scholars concurred on the point that the Equal Protection Clause of the Fourteenth Amendment—which again, was designed to combat racial discrimination—cannot be used to combat economic discrimination as in Harper. This doesn’t entail liking a poll tax. Nor does it entail thinking that a poll tax is irrefutably constitutional. (And for the record, I don’t like poll taxes and I quite willingly accept that it is settled law that poll taxes are unconstitutional; no reasonable person has it in mind to revisit the Court’s ruling in Harper.) But Bork’s larger point is that just because one doesn’t like something doesn’t mean that said something is unconstitutional. Toobin, who is a lawyer, ought to understand this, but since Toobin is also a demagogue of especially appalling insincerity, he at least pretends not to in his “postscript.” (I of course allow for the possibility that Toobin is simply too addled to understand these points.)...
- basman
December 20, 2012 at 9:56pm
@Chaitless, I think Bork's earlier views on the civil rights legislation were mistaken and I suspect exemplified more than anything else the bizarre conclusions his idiosyncratic views sometimes led him to. Here is more from Pejman Yousefzadeh on this part of Bork's life as written about by Ethan Fromer: ....As for Bork’s comment regarding the 1964 Civil Rights Act, I of course disagree with Bork’s “unsurpassed ugliness” comment, but what Toobin fails to mention is that Bork ended up disagreeing as well. As Bronner notes (p. 68), “Bork himself came to regret and eschew his position.” People do change their views on the issues of the day, and to pretend that those views are permanently cast in stone is fundamentally wrong and deeply dishonest. Lest anyone think that this was simply a “confirmation conversion” designed to win enough votes to vault him to the Supreme Court, even Toobin—for all of the unsurpassed ugliness of his own column—admits that “[t]o his credit, Bork gave honest and forthright answers to the questions posed by the senators on the Judiciary Committee,” when he had been nominated to the Supreme Court. Given that not even Toobin’s character assassination piece is willing to claim that Bork conveniently changed his views on the 1964 Civil Rights Act in order to win votes, no one ought to entertain the idea seriously. Further on the issue of discrimination: Toobin—being the demagogue and scoundrel that he is—neglects to mention that as a young associate, Bork confronted the partners of his law firm regarding evidence that the firm’s management was anti-Semitic, and demanded that the partners abandon their prejudice against Jews in both their private dealings with Jewish members of the firm, and in their decisions regarding whether to award partnerships to Jewish associates (Bronner, pp. 64-65). As solicitor general, Bork also took a strong stance against gender discrimination in the Justice Department (Bronner, pp. 82-83). Unsurprisingly, none of these data points find their way into Toobin’s “postscript.” RAs for Bork’s comment regarding the 1964 Civil Rights Act, I of course disagree with Bork’s “unsurpassed ugliness” comment, but what Toobin fails to mention is that Bork ended up disagreeing as well. As Bronner notes (p. 68), “Bork himself came to regret and eschew his position.” People do change their views on the issues of the day, and to pretend that those views are permanently cast in stone is fundamentally wrong and deeply dishonest. Lest anyone think that this was simply a “confirmation conversion” designed to win enough votes to vault him to the Supreme Court, even Toobin—for all of the unsurpassed ugliness of his own column—admits that “[t]o his credit, Bork gave honest and forthright answers to the questions posed by the senators on the Judiciary Committee,” when he had been nominated to the Supreme Court. Given that not even Toobin’s character assassination piece is willing to claim that Bork conveniently changed his views on the 1964 Civil Rights Act in order to win votes, no one ought to entertain the idea seriously.... Further on the issue of discrimination: Toobin...neglects to mention that as a young associate, Bork confronted the partners of his law firm regarding evidence that the firm’s management was anti-Semitic, and demanded that the partners abandon their prejudice against Jews in both their private dealings with Jewish members of the firm, and in their decisions regarding whether to award partnerships to Jewish associates (Bronner, pp. 64-65). As solicitor general, Bork also took a strong stance against gender discrimination in the Justice Department (Bronner, pp. 82-83). Unsurprisingly, of these data points find their way into Toobin’s “postscript.” So on the one hand we have view of the Civil Right legislation, which, it is reported, Bork came to regret and on the other hand we have accounts beyond that regret of some evidence of Bork's standing at least anti Semitic prejudice. In The Tempting of America (as presaged by “Neutral Principles”), Bork said Brown was “a great and correct decision”—as in “result”—but regrets the thoroughly flawed reasoning on which it rests—the court’s opinion having vaulted into fashion today’s habit of judicial legislation. Rosen recounts his great friendship and pedagogic association with Bickel, some circumstantial evidence, I'd argue, for Bork as not a racist. So Chaitless my question back to you is where else, other the your inference of racism from Bork's idiosyncratic view of the Civil Rights Act, which view he reportedly recanted, is there evidence of his racism either in his doings or in his other writings? I've moved away some from my original and to me obvious observation that revering the man's death is grotesque but being pushed into looking into some of the too easily made accusations, my sense is that they are unfounded, namely his racism and his misogyny.
- basman
December 20, 2012 at 10:24pm
Basman: "my reasoning is but sophistry; I'm evil; and when I die you'll chortle with glee and dance on my corpse." Chill. You are talking in abstractions; we are talking about a single man and his views. We know of his political views - he has not been shy about them. We know of his extreme political views - his book is called "Slouching Towards Gomarrah" for God's sake. This is one choice quote: "Analysis demonstrates that we continue slouching towards Gomorrah. We are well along the road to the moral chaos that is the end of radical individualism and the tyranny that is the goal of radical egalitarianism. Modern liberalism has corrupted our culture across the board." I put it to you that any sentence that includes Gomarrah, is not referred to the Biblical story, and has the word "analysis" in it should give you a clue that the writer does not know the meaning of "analysis." Or is lying. Or is insane. And probably all three. A man who writes a sentence such as this: "If there are signs that we have become less concerned than we should be with virtue, there are also signs that many Americans are becoming restless under the tyrannies of egalitarianism and sick of the hedonistic individualism that has brought us to the suburbs of Gomorrah." May be trusted to allow his political, social and moral views to colour, taint and pollute not only his legal judgement but the underlying philosophy. These quotes, by the way, are from a site that supports the oik. There is the saying, "by their fruits ye shall know them." It is possible to push this too far. But instead of creating silly counterfactuals about genocide, the UN and "sovereignty", look at the man and the fruits of his poisoned pen.
- icarus-r
December 21, 2012 at 10:11am
P.s.: No one today looks at Taney and says, "There goes a legal giant, who applied the Constitution as it was writ, stared down the forces of intellectual tyranny and declared rightly, against all pressures moral and political, that under the Constitution, the Founders did not mean that slaves were persons." He is considered, rather, as a narrow-minded pedant who, in the name of legal purism, drove the country into a civil war, 650,000 dead and a century of civil discord and discrimination. Legal philosophies have consequences. Concrete consequences. And it is right and proper to judge the judge not only on the strict legalism of his analysis, but also on the consequences of his actions. Not, let me say, in a historically condescending way, but in context, Taney was wrong and was considered to be wrong then; history has not absolved him; no amount of Originalist or Textualist claptrap can wash away his partial guilt for what followed.
- icarus-r
December 21, 2012 at 10:16am
Basman, to celebrate a man's death may be unseemly, but not much more so than your bizarre and ardent defense of a repugnant man whose passing few are mourning. Icarus, as usual, you brilliantly cut through the bullshit smokescreen and illuminate the ugly and questionable position taken here. Thank you.
- bunthorne
December 21, 2012 at 1:04pm
@ ick Sorry pal, methinks you're the one a little overwrought here: to wit: ...I put it to you that any sentence that includes Gomarrah, is not referred to the Biblical story, and has the word "analysis" in it should give you a clue that the writer does not know the meaning of "analysis." Or is lying. Or is insane. And probably all three.. My guess is that Bork understood what analysis means at least as well as you, wasn't *insane* or lying. Pretty slender reed, one sentence from one book--as if we all haven't gotten on occasion wound up in our arguments and haven't thereupon waxed overly-rhetorical-- to support such outlandish and outsized assertions. So perhaps the chilling be with you too. I gotta disagree about the silly counter factuals or the abstractions. I maintain that it's terribly blunt reasoning to move from the views Bork held on certain legal issues he opined about, rooted in his constitutionalism, to the indictment that he supported, is causally guilty of, certain ills he thought the U.S. Constitution couldn't reach. What is abstract about that as a defensible or indefensible line of moral reasoning? My examples, a tad dramatically put, I'll agree, on their rereading just now, simply are meant to serve a claim for the tenuousness that proposition, to illustrate that one may take a view of jurisdiction or constitutional ambit, as Bork did, and be morally separate from the issue others would have wanted the court to address. Now you argue Bork is Bork and we know enough about him to say that he was a racist and a misogynist. We can see through his legal reasoning to the dark views he actually had. But then you're doing the same "supposin" you had originally accused me of. So I argue the issue on two levels, the fallacy of the general proposition and that specifically in Bork we don't have elaborated before us persuasive evidence of his racism or his misogyny. Later forTaney. We can do well enough here to stick with Bork, though your assertion of the unmitigated disapprobation Taney receives at the hands of constitutionalists seems factually wrong. See for example http://www.harvardlawreview.org/issues/125/december11/forum_768.php
- basman
December 21, 2012 at 1:31pm
Excellent analysis Bunthorne.
- basman
December 21, 2012 at 1:32pm
"Now you argue Bork is Bork and we know enough about him to say that he was a racist and a misogynist." I don't know if he was racist or misogynist, and I don't think I said that. I am saying that from what we know of his body of work, he had a certain political orientation. We also know that from his perspective, his particular legal philosophy managed to land him in more or less the same spot as his political orientation. This much, at least, you and I can agree on. You then say that his legal philosophy was deeply or sincerely held, that the legal philosophy itself is sound, that we should not judge a judge's thinking on the philosophy of the law by the indirect consequences of the judgements, etc. (have I got it correctly?). Amar notes that at least insofar as he knew Bork - and he apparently knows more of Bork than either of us - Bork's knowledge of the history of the Constitution was not very strong. And that Amar's own analysis demonstrates that applying Bork's own originalism analysis leads to almost opposite conclusions. (My paper looked at the Fourth and Fourteenth Amendments, and the conservative soi-disant originalist position on search and seizure and on affirmative action is almost certainly not supported by true originalist analysis, for what it is worth. So at least on these two, any "originalist" analysis that ends up supporting conservative talking points is charlatanism simpliciter.) So even if one accepts the premises of originalism, there is a doubt that properly applied, the philosophy advanced by Bork supported the conclusions he alleged were legal conclusions. At a minimum, then, there is a doubt about 1) his analytical skills in law, or 2) the sincerity of his adherence to the legal philosophy as a legal philosophy, rather than as a a club to club liberals with. But of course, originalism itself is problematic, for all the reasons we have already hashed out. And, please - don't even try to defend the Gomarrah sentence. Surely you can't disagree that it's astonishingly oiky. As for Taney - what do you know - he has defenders. And there are those who want to restore the 14th Amendment to its original sense. I once reviewed a book on Black for a souther law journal. It's amazing, I noted in the review, how apparently sane and credible academics can justify even membership of the KKK; I mean, not overlook or excuse, but actually justify. I will leave it at that.
- icarus-r
December 21, 2012 at 4:29pm
Been on the run, even now, but may say a word or 2 2morow.
- basman
December 21, 2012 at 9:29pm
@ ick ..."Now you argue Bork is Bork and we know enough about him to say that he was a racist and a misogynist." I don't know if he was racist or misogynist, and I don't think I said that. I am saying that from what we know of his body of work, he had a certain political orientation. We also know that from his perspective, his particular legal philosophy managed to land him in more or less the same spot as his political orientation. This much, at least, you and I can agree on.... I really don't know enough about him to say so but it sounds reasonable and I'd be prepared more or less to stipulate it with the "more or less" excluding legal opinions on constitutionall limits compelling conclusions at variance with his personal values and beliefs. One I'm aware of is his personal opposition to poll taxes but his concluding it didn't lie within SCOTUS to strike down state laws of certain order requiring them. )It's certainly an odious conclusion.) There may be other instances of such differences between what he believed and what the court could order. ....You then say that his legal philosophy was deeply or sincerely held, that the legal philosophy itself is sound, that we should not judge a judge's thinking on the philosophy of the law by the indirect consequences of the judgements, etc. (have I got it correctly?)... This isn't so clear to me so let me reformulate in terms I'm comfortable with. I think he was a sincere textualist and originalist. I think textualism makes a lot of sense. I have doubts about its exclusivity as a legal approach. And when it comes to hard cases, where it's intellectually difficult to near nigh impossible to come out clearly on one side of the issue or the other then textualism is pretty much, like other explanatory theories, its utility is minimal. My doubts with respect to originalism as a sub set of textualism are even more pronounced. But even Bryer in Active Liberty gives weight to textualist and originalist arguments as among a palette of construction and legal issue-solving techniques. I'm not ready to say as an absolute proposition that we shouldn't "judge a judge's thinking on the philosophy of law by the indirect consequences of the judgments etc..." if I even understand it, it's a mite unwieldy. To the extent I'm getting what you are saying, because it seems such a widely embracing proposition I'd be inclined to want to assess, case by case, the thought, body of thought, and the examples of the indirect consequences. ...Amar notes that at least insofar as he knew Bork - and he apparently knows more of Bork than either of us - Bork's knowledge of the history of the Constitution was not very strong. And that Amar's own analysis demonstrates that applying Bork's own originalism analysis leads to almost opposite conclusions. (My paper looked at the Fourth and Fourteenth Amendments, and the conservative soi-disant originalist position on search and seizure and on affirmative action is almost certainly not supported by true originalist analysis, for what it is worth. .. This--I still have to read your paper--an assessment of Bork's scholarly work and perhaps his judicial work in light of his own premises, IE was he a good legal thinker, was he a good judge, and add to that, was he a good lawyer, is candidly beyond my ken. Again I have differentiated views on textualism and originalism. What I object to is their wholesale vilification and think that up to a point textualism is a powerfully telling theory of judicial approach. ...So at least on these two, any "originalist" analysis that ends up supporting conservative talking points is charlatanism simpliciter.) So even if one accepts the premises of originalism, there is a doubt that properly applied, the philosophy advanced by Bork supported the conclusions he alleged were legal conclusions. At a minimum, then, there is a doubt about 1) his analytical skills in law, or 2) the sincerity of his adherence to the legal philosophy as a legal philosophy, rather than as a a club to club liberals with... I sympathize with the spirit of this comment but would put it differently. I'd say this: for hard cases, legal reasoning tends to be pretext. Most cases that get to Anglo-Canadian-American supreme courts have two, at least, competing legal visions contending against each other found on usually virtually equalling compelling values, legal principles, which also usually implicate the judges' own values, biases, philosophy cum ideology. Obviously that is most evidently manifest in the spilt decisions. So who are and aren't charlatans: liberals who get to liberal results by their pre-textual legal reasoning or conservatives by theirs? Are the conservatives on SCOTUS charlatans of a stripe that the liberals are not? And to underscore that question, how do you deal with the emerging school of liberal oriented originalism that I've before mentioned? My own inclination isn't to think of these judges as charlatans but more to see the limits of legal reasoning in hard cases and take the outcome generated results in these cases for what they typically are.
- basman
December 23, 2012 at 5:52pm