A new book by right wing activists Mollie Hemingway and Carrie Severino called Justice on Trial recounts the story of Robert Bork’s losing confirmation battle during the Reagan years. They do so inaccurately, of course, adopting the “he was a brilliant judge who was treated terribly unfairly by those evil liberal” myth that is virtually gospel truth on the right.
Ostensibly a book about the Kavanaugh nomination, they nonetheless are legally required to claim that Bork was the victim of “scurrilous attacks” that were “unconscionable.” But as I documented in the second post I ever wrote way back in 2003, Bork was rightly rejected for the court because his views on a great many issues were, in fact, unconscionable to the point of being bewilderingly absurd. A few examples:
1. He believed that the 9th Amendment, for all practical purposes, did not exist, calling it nothing more than an “ink blot” on the Constitution that could not be used as the basis for protecting any right not explicitly listed in the Constitution. But that is the one position that one simply cannot take, especially if you consider yourself an originalist. The entire point of the adding the 9th Amendment was to prevent people from making that exact argument, that any right not explicitly listed was fair game for government regulation.
2. He made an almost surreal equivalence between someone wanting freedom to order their private lives the way they wished and those who wanted to prevent them from doing so:
“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?
3. On that last count, Bork also believed that the First Amendment provided no protection for literary, scientific or artistic speech, only speech that was explicitly political. He wrote, “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.” One will search in vain to find even a shred of evidence in either the text of the Constitution or the writings of the Founding Fathers. If this is originalism, it is a cartoon version.
Robert Bork on the court would have been a disaster. He would have made Clarence Thomas look like a flaming liberal.