Robert Bork Revisited

George Anastaplo

To the Editor, The New York Times

Re “Robert Bork, Romney Standard-Bearer” (Editorial, April 27, 2012).

My University of Chicago Law School classmate is attacked in your editorial for his “extreme views.” However, Mr. Bork’s criticism of the “imperial judiciary” finds considerable support in the Constitution itself, which obviously did not contemplate the kind and extent of judicial review of Acts of Congress we are now capriciously subjected to. His opposition to “broad protection for free speech” is also grounded in the Constitution, which did not contemplate (even with its invaluable First Amendment) what we have had to become accustomed to, including the routine desecration of military funerals, the ever-increasing dissemination of corrupting obscenity, and even something decried in your lead editorial of April 27, “the unlimited money being spent on television ads” during political campaigns. In addition, his questioning of “the constitutional right to privacy” should be encouraged by citizens troubled by our growing emphasis on that obsessive self-centeredness which steadily depreciates among us both the requirements and the satisfactions of old-fashioned citizenship. All this is aside from the issue of how one should vote in November.

George Anastaplo
Professor of Law
Loyola University of Chicago
April 29, 2012

[Not published by The New York Times]


Appendix: New York Times Editorial, April 29, 2012, p. A22

Robert Bork, Romney Standard-Bearer

Robert Bork has been among the most divisive figures in American law and a right-wing standard-bearer in Republican politics for nearly 40 years. In 1973, when he was solicitor general, he fired Archibald Cox as special prosecutor on the order of Richard Nixon to aid the Watergate cover-up. When Ronald Reagan nominated him to the Supreme Court in 1987, the Senate rejected him by a vote of 58 to 42, the largest margin in American history.

Now Mitt Romney has made Mr. Bork a chairman of his Justice Advisory Committee. As with other Republicans leaders, Mr. Bork’s central position in Mr. Romney’s legal team says a great deal about the presumptive presidential nominee’s approach to the law, none of it good.

The right wing has always claimed that Mr. Bork’s defeat was entirely partisan. In fact, it has made a verb out of his confirmation battle. To be borked is to be destroyed by whatever means it takes, and his confirmation struggle was, therefore, not about the substance of his legal views.

In fact, the confirmation shed considerable light on Mr. Bork’s extreme views. As a critic of what he called the “imperial judiciary,” he contended that, except when the Constitution expressly says otherwise, the court must defer to the will of the majority. Otherwise, he said, it makes “corrupt constitutional law” that is constrained only by the personal values of justices, leaving government subject to the “tyranny of the minority.”

That led Mr. Bork to be on the wrong side of many settled legal issues:  he opposed broad protection for free speech; he questioned the constitutional right to privacy; he once opposed integration of public accommodations by the 1964 Civil Rights Act, calling it “unsurpassed ugliness.” Even after a confirmation conversion, his views on civil rights were decidedly unfavorable to minorities.

After his defeat for being outside the mainstream, he resigned his federal judgeship and became a polemicist for ultraconservative ideas. Whether Mr. Romney picked Mr. Bork for his legal views, to arouse the right wing or both, the choice is disturbing.

This entry was posted in Constitutional Law, Letter to the Editor, Remembrance, US Supreme Court and tagged , . Bookmark the permalink.

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