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The Bork Legacy | The Nation

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The Bork Legacy

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Robert Bork died on December 19, a deeply embittered man, but the rewrite of history that began immediately after he was denied a seat on the Supreme Court has won the day. Despite persistent right-wing assertions, Bork was not rejected because of a liberal campaign of “brazen lies,” “smears” and “distortions”—as The Wall Street Journal claimed—but because, as one Reagan White House aide admitted, he was a “right-wing zealot,” hostile to abortion, civil rights, free speech, church-state separation and human rights.

About the Author

Herman Schwartz
Herman Schwartz, a professor of law at the American University, is the author of Right Wing Justice: The Conservative...

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Because Bork’s handlers, particularly Washington lawyer Lloyd Cutler, knew Bork couldn’t win if people knew what he was really like, they tried to package him as a “moderate conservative” in the mold of Justice John M. Harlan. It didn’t work. Bork had spoken out too much on too many issues to keep his real views secret.

And these views were extreme indeed:

Equality: Bork condemned the Fourteenth Amendment’s Equal Protection Clause decisions that outlawed the poll tax (“a very small tax,” he called it); established the one-person, one-vote principle; abolished school segregation in the District of Columbia; barred courts from enforcing racially restrictive housing covenants; prevented a state from sterilizing certain criminals or interfering with the right to travel and prohibited discriminating against out-of-wedlock children. As late as June 1987, he declared, “I do think the Equal Protection clause probably should have been kept to things like race and ethnicity.”

Bork’s hostility to governmental action on behalf of minorities was not limited to court action. He lambasted the 1964 Civil Rights Act provision requiring white businesses to serve blacks, calling it based on a principle of “unsurpassed ugliness.” He also condemned the Supreme Court’s 1966 decision allowing Congress to bar literacy tests. “At almost every critical turning point in the civil rights movement,” testified Republican William T. Coleman, Jr., Gerald Ford’s secretary of transportation, Bork had “turned the wrong way.”

Free Speech: In 1971, Bork wrote that the First Amendment should protect only “explicitly political” speech, which he defined as limited to “criticisms of public officials and policies, proposals for the adoption or repeal of legislation or constitutional provisions and speech addressed to the conduct of any governmental unit in the country.” He later expanded the protected class to include scientific or moral discourse that “directly feed[s] the democratic process,” but as late as June 1987 he still did not think “courts ought to throw protection around …art and literature.”

Privacy: Bork opposed not only the abortion decision but also Griswold v Connecticut (1965), which allowed married couples to use contraceptives. Even Reagan’s solicitor general, Charles Fried, was unwilling to go that far.

While on the US Court of Appeals in Washington, DC, he also established a reputation for ingenuity in denying litigants access to the courts.

Because of these views, Bork faced a torrent of opposition. More than 2,000 law teachers, more than 40 percent of the total at accredited law school, were against his nomination, including the deans of Harvard, New York University, Michigan, Georgetown, Northwestern and many other schools. Conservative Philip Kurland of the University of Chicago wrote, “Bork’s entire current constitutional jurisprudential theory [is] directed to a diminution of minority and individual rights.”

Most important, five of the fifteen members of the American Bar Association committee on the federal judiciary refused to give Bork a “qualified” rating—the first time the ABA had not been unanimous in favor of a Supreme Court nominee since it began evaluating candidates during the Eisenhower administration; four found him “not qualified.”

As a result, despite a planned multimillion-dollar campaign on his behalf, some 22,000 postcards sent to the Judiciary Committee by Jerry Falwell and his followers, several million letters and over $1 million in direct solicitations by Richard Viguerie, the country turned against Bork after the hearing, even in the South. Southern women were particularly concerned about his views on privacy, and Southern Democratic senators, who were now dependent on black votes, feared that his confirmation would reopen civil rights wounds.

Bork lost in committee 9-5, but insisted on a floor vote. After two days of desultory debate, the Senate voted 58-42 to reject the nomination, including six Republicans who voted against him.

Although Bork lost, the Republicans didn’t. They have persuaded many Americans that Bork was treated unfairly, and have used this as a weapon with which to bludgeon the Democrats and charge up their base.

Once again, politically manipulated mythology has replaced objective history.

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