Can We Stop the Bork Comparisons, Please?

Can We Stop the Bork Comparisons, Please? February 17, 2016

Ever since the Senate rejected Robert Bork for the Supreme Court in 1986, Republicans have whined about it and pretended that all the Democrats did was engage in character assassination. And now they’re actually comparing that situation to the Republican now saying they’ll block any nominee, period. The comparison is ridiculous.


Specifically, more and more conservatives have decided that the current, Republican-made court controversy is like the time Judge Robert Bork was nominated for the Supreme Court by President Ronald Reagan, only to have the U.S. Senate vote down the confirmation.

“Democrats have been blowing up the appointment process piecemeal since they turned Judge Robert Bork’s last name into a verb back in 1987,” wrote Jonah Goldberg in the Los Angeles Times, in a column about the fight over replacing Scalia.

“Look at what the Democrats have done in poisoning the well, particularly on judicial nominations, stretching back to 1987 and the character assassination against Robert Bork,” complained Townhall political editor Guy Benson on Fox News.

Bork’s confirmation battle was indeed unusually partisan, contentious, and left political scars that some Republicans are still nursing. (Being “Borked” became a verb in conservative circles.) But there’s nothing remotely similar to the Bork nomination battle and the current obstructionist crisis over Scalia’s death. The Bork battle revolved around a specific jurist. The Scalia battle revolves around the idea that the entire nominating process be shelved for at least a year…

Yet the comparisons roll on. “In 2016, it’s the Republican Senate that’s threatening to Bork whoever President Obama wants. And they have every right to do so,” wrote Tim Stanley in The Telegraph.

“All of a sudden they think immediately approving Supreme Court nominations is some kind of solemn duty of the Senate? Where were these ‘dishonoring the Constitution’ lectures back when Democrats were dragging Robert Bork and Clarence Thomas into the town square and assassinating their character in front of the jeering hordes?” demanded Matt Walsh at The Blaze.

Robert Bork was rejected on the basis of his absolutely bizarre views on the Constitution. If he’d been confirmed, he would have been the most radical justice the court had ever seen, and by a pretty wide margin. He would have made Clarence Thomas look like he’s in the jurisprudential mainstream. He had views like this about the 1st Amendment:

“Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, there should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law.”

You want that guy on the Supreme Court? Or take his view on Griswold v Connecticut, the case that struck down a state law forbidding the sale or purchase of contraception:

“Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratification of the two groups…why is sexual gratification more worthy than moral gratification?…

No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”

This is surreal. The reason why you “gratify” one over the other should be obvious to the average junior high school student, much less to this allegedly brilliant legal scholar: One involves controlling your own behavior and one involves controlling someone else’s behavior, and using the government to do so. Bork’s position is a recipe for theocracy, not a free society. He also opposed the passage of the Civil Rights Act of 1964.

The Senate was absolutely right to reject Bork for the Supreme Court. He would have been extraordinarily dangerous on the court.

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