Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century. The fifty-eight senators who voted against Bork for confirmation to the Supreme Court in 1987 honored themselves, and the Constitution. In the subsequent quarter-century, Bork devoted himself to proving that his critics were right about him all along.

The conservative movement’s choice for president believes that whites-only lunch counters should be legal. He believes that business owners’ rights trump civil rights, that Medicare should be undermined or even destroyed, and that workers simply have too much power to demand better wages and working conditions from their employers.

I write this words today, two days after voters in the Conservative Political Action Conference’s straw poll selected Sen. Rand Paul (R-KY) as their preferred candidate for president in 2016, but they could have just as easily been written in 1964 as Arizona Sen. Barry Goldwater was consolidating the support he’d need to become the GOP’s presidential candidate.

Like Paul, Goldwater opposed the federal ban on whites-only lunch counters. Like Paul, Goldwater backed so-called “right to work” laws intended to undermine unions — and the higher wages those unions bring. And like Paul, Goldwater had no love of Medicare. Goldwater once mocked the idea that seniors should enjoy government-provided health insurance as akin to giving them free “vacation resorts” and “a ration of cigarettes for those who smoke and of beer for those who drink.” Paul supports a plan to roll back Medicare that would even make Paul Ryan blush.

The first time Republicans sought the White House with this agenda, it did not turn out too well for them. President Lyndon Johnson trounced Goldwater in one of the most devastating landslides in American history. And yet, if the CPAC straw poll is any indication, the party’s increasingly dominant conservative wing is eager for a rematch.

Out Of The Closet

The parallels between Goldwater’s ascendance and the rise of Tea Party candidates like Paul stretch beyond their similar policy prescriptions. Indeed, the Tea Party is as much at war with Republicans who might compromise their own purity as it is with Democrats who reject hardline conservative values altogether. “We need another come-to-Jesus meeting,” former vice presidential candidate Sarah Palin (R-AK) told CPAC this past weekend. “America is counting on the GOP to get it right, and that’s why the establishment can’t blow it.”

Goldwater offered similar protests against a Republican establishment that, in his mind, had strayed too far from the conservative path. The Arizona senator slammed Republican President Dwight Eisenhower for operating a “dime store New Deal,” and he offered himself up to voters as an out and proud alternative to Republicans afraid to be seen as too conservative. Goldwater’s 1960 book The Conscience of a Conservative opened with a direct swipe at self-hating conservatives — “I have been much concerned that so many people today with Conservative instincts feel compelled to apologize for them.” And his campaign buttons and billboards appealed directly to conservative voters to come out of the closet. “In your heart,” Goldwater’s most famous campaign slogan read, “you know he’s right.”

(Johnson supporters responded with a slogan of their own: ”In your guts you know he’s nuts.”)

Conservatives like Goldwater had good reason to remain in the closet in the 1960s. The last president to serve a full term before the dawn of the Great Depression was Calvin Coolidge, a staunch conservative who once proclaimed that “[c]ollecting more taxes than is absolutely necessary is legalized robbery.” In the lead up to the Depression and for several years after it began, the Supreme Court enforced a kind of laissez faire political orthodoxy by striking down laws banning child labor, guaranteeing a minimum wage and protecting the right of workers to organize.

Then the New Deal and the massive government spending project known as “World War II” happened, and America emerged from the Depression as the wealthiest and most powerful nation that ever existed. In 1964, the year Johnson defeated Goldwater, the United States saw an eye-popping 5.8 percent growth in its gross domestic product. Conservative economic theory seemed wholly discredited by the 1960s, and the economics of the New Deal and the Great Society appeared entirely vindicated.

Goldwater’s Constitution

Nevertheless, Goldwater borrowed heavily from pre-New Deal conservatism in shaping his own views. One of the central tenets held by conservatives prior to and during the Roosevelt Administration was that liberalism is not just wrong, it is also forbidden by the Constitution. This is why the Supreme Court so blithely struck down laws benefiting workers in the lead up to the Great Depression. And it’s also why the American Liberty League, a kind of proto-Tea Party formed to oppose FDR and the New Deal, framed its objections largely in constitutional terms. As one early Liberty League supporter described the organization’s creed:

I believe in the Constitution of the United States; I believe in the division of power that it makes, and that it is the duty of every public officer to observe them [sic]. I believe in the rights of private property, the sanctity and binding power of contracts, the duty of self-help. I am opposed to confiscatory taxation, wasteful expenditure, socialized industry, and a planned economy controlled and directed by government functionaries.

Goldwater, more than any other Republican of his era, sought to revive this notion that the Constitution was a fundamentally conservative document. In announcing his opposition to the Civil Rights Act of 1964, for example, Goldwater argued that its provisions regulating private business — the bans on whites-only lunch counters, employment discrimination, racial exclusion in hotels and similar practices — all violated the Constitution. “I find no constitutional basis for the exercise of Federal regulatory authority in … these areas,” Goldwater announced on the Senate floor. “[A]nd I believe the attempted usurpation of such power to be a grave threat to the very essence of our basic system of government.”

In a subsequent speech, Goldwater added that he also opposed the civil rights law because he thought that it violated business owners’ right of “freedom of association.” “There’s a freedom to associate and there’s a freedom not to associate,” Goldwater declared. And the right to not associate with black people was apparently part of this second “freedom.”

In reaching these views, Goldwater relied on the advice of two men who would go on to become some of the most influential constitutional thinkers in the conservative movement.

The first was a fairly obscure Arizona lawyer named William Rehnquist, who would later rise from this obscurity to become Chief Justice of the United States. The same year that Congress passed the Civil Rights Act, the Phoenix City Council enacted a similar ordinance banning many forms of discrimination by private businesses. Rehnquist was one of only three people who testified against the proposed ordinance, and he later published a letter to the editor of theArizona Republic laying out his objections. Though Rehnquist conceded that discrimination by the government itself was out of bounds — “All of us alike pay taxes to support the operation of government, and all should be treated alike by it,” the future chief justice wrote — he held very different views about the government’s power to address private racism. The ordinance, according to Rehnquist’s letter, “does away with the historic right of the owner of a drug store, lunch counter, or theatre to choose his own customers.”

Goldwater sought out Rehnquist’s advice on whether he should support the Civil Rights Act, and then he sought a second opinion from a Yale law professor named Robert Bork — the same Robert Bork that President Ronald Reagan would try and fail to put on the Supreme Court. Yet Goldwater must have known what advice Bork would have given him when he asked for it, as Bork had already laid out his views in a 1963 article published in the New Republic. The principle behind a federal ban on whites-only lunch counters, Bork argued in that piece, “is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.”

In Your Guts Your Know He’s Nuts

After Johnson’s decisive victory over Goldwater, Republicans largely turned away from Goldwater’s hardline views. Though the party’s next presidential nominee, Richard Nixon, infamously embraced a “Southern strategy” seeking to appeal to white racists, he was careful not to go so far as to oppose LBJ’s landmark civil rights legislation. In a 1964 speech attacking what he called the “irresponsible tactics of some of the extreme civil rights leaders,” Nixon also praised the Civil Rights Act itself — predicting that “[i]f this law is effectively administered, it will be a great step forward in the struggle for equality of opportunity for all Americans.”

As Chief Justice of the United States, Rehnquist sat on three cases where one of his fellow justices — Justice Clarence Thomas — embraced a Goldwateresque view of the Constitution that would have rendered the Civil Rights Act unconstitutional. Yet Rehnquist did not join Thomas’s opinions in these three cases.

Bork also repudiated his past opposition to the Civil Rights Act during his 1973 confirmation hearings before he became Solicitor General of the United States. At these hearings, Bork reportedly “said that he had changed his mind and that his 1963 article had been a kind of thought experiment.”

Which is why Rand Paul’s 2010 statement, that the “hard part about believing in freedom” is that you must also believe in the legality of whites-only lunch counters, is so remarkable. When Paul came out against the Civil Rights Act, he did not simply come out against a widely cherished law, nor did he just take a position well to the right of the Republican Party’s explicit views. Paul embraced a view that was rejected by the very same people who were its leading proponents at the time that the Civil Rights Act became law. The CPAC attendees who embraced Paul as their candidate are effectively trying to wipe away all of this history — the defeat of Goldwater, the reputation of Goldwater’s views by the GOP, the evolution of men like Bork and Rehnquist — and relitigate the election of 1964 more than half a century after Johnson won it in a landslide.

Indeed, in reality, they are doing far more than that. When I floated the premise of this article on Twitter, Mother Jones‘ Nick Baumann pointed out to me that “Barry Goldwater and Rand Paul would disagree on the single most important social issue” — abortion.

Perhaps because Goldwater rose to prominence before Americans’ views on abortion began to polarize along partisan lines, the man who once defined conservatism went to his grave wildly out of step with his party on this contentious issue. Indeed, in a 1994 interview, Goldwater complained that “a lot of so-called conservatives … think I’ve turned liberal because I believe a woman has a right to an abortion.” Abortion, according to Goldwater, is “a decision that’s up to the pregnant woman, not up to the pope or some do-gooders or the religious right. It’s not a conservative issue at all.”

Even more remarkably, Goldwater became a staunch supporter of gay rights in the twilight of his life. After retiring from the Senate, Goldwater supported allowing gay people to serve openly in the military, and he even became honorary co-chairman of a push to ban a federal ban on job discrimination against gay Americans.

In other words, thirty years after Goldwater opposed a federal ban on job discrimination on constitutional grounds, he became one of the leading proponents of a federal ban on job discrimination. Even Barry Goldwater eventually rejected Barry Goldwater’s rationale for opposing the Civil Rights Act.

And yet, Rand Paul does not. Nor does Paul share Goldwater’s views on abortion. Indeed, Paul introduced legislation that would “extend the Constitutional protection of life to the unborn from the time of conception.”

The man CPAC favored to be the next President of the United States, in other words, makes the Godfather of conservatism look like Martin Luther King. Three decades after his own presidential race, Goldwater himself understood that the views he once championed were wrong. Yet Tea Party conservatives would foist these views upon the nation regardless.

h/t: Ian Millhiser at Think Progress Justice

Mitt Romney gave us ample warning of what he would do to the Supreme Court’s balance when he chose Robert Bork as the head of his judicial advisory team. Bork’s own appointment to the SC received bi-partisan rejection by the Senate in 1987. As a judge, he supported corporate “rights” at the expense of people’s rights any chance he got.
As noted by People For the American Way

Bork was confirmed to the D.C. Circuit Court of Appeals on February 8, 1982. On the bench, Bork turned his authoritarian instincts into a voting record that nearly always favored government when it was challenged by public interest groups, workers or citizens but favored business corporations whenever they challenged the government. If the New Yorker magazine drew a map of Judge Bork’s vision of America, corporations would loom large and vast over the country, the government would be standing beneath them as a military and police force to control the rabble, and citizens would appear as barely visible specks on the bottom of the land.

Just to give us a brief refresher on Bork’s philosophy on Civil Rights, he described the Civil Rights Act of 1964 as a “moral abomination.”
He would send women’s rights back to the dark ages as conveyed by this comment on gender discrimination. “I do think the equal protection clause probably should be kept to things like race and ethnicity.”

A Romney court would reverse Roe v. Wade, which comes as no surprise when one considers the views Romney and his sidekick, Paul Ryan, have on reproductive rights. (Think Todd Aikin of “legitimate rape” fame)
As a defender of DOMA, Romney would defend DOMA and seek a constitutional amendment defining marriage as exclusively between 1 man and 1 woman.

Romney’s website gives us further warning of his intent to further entrench an extreme right wing activist court.

As president, Mitt will nominate judges in the mold of Chief Justice Roberts and Justices Scalia, Thomas, and Alito.

Where do people even get their news anymore?

Because people are seriously going around saying that a Supreme Court justice died this morning…rather than a supreme court nominee.

I heard “Robert Bork died” and knew he was a former supreme court nominee during the Reagan administration, whose nomination was rejected by the Democratically controlled Senate.

I didn’t even have to read the rest of the news update that Fox sent me at 6am.

I just knew who he was.

Because I’ve read books!

That person I reblogged was literally the 5th person to have said or written, where I could read it, that Bork was apparently on the Supreme Court.

Do people just not read anymore?

I ask Bork if he still disagrees with the high court’s Griswold v. Connecticut ruling that married couples have a constitutional right to the use of contraception?

“Oh, my God, yes!”

And does he still believe that the First Amendment should be limited to political speech and not protect, as he once wrote, “any other form of expression, be it scientific, literary or…pornographic”?

“Oh yes!” he answers enthusiastically. “If you look at what they say, the First Amendment supposedly defines things like child pornography. The Supreme Court said there was a right to it. That’s actually insane.”

How about the Equal Protection Clause of the 14th Amendment? Does he still think it shouldn’t apply to women?

“Yeah,” he answers. “I think I feel justified by the fact ever since then, the Equal Protection Clause kept expanding in ways that cannot be justified historically, grammatically, or any other way. Women are a majority of the population now—a majority in university classrooms and a majority in all kinds of contexts. It seems to me silly to say, ‘Gee, they’re discriminated against and we need to do something about it.’ They aren’t discriminated against anymore.”

—  Mitt Romney’s campaign manager insists that sexism is over but contraception shouldn’t be widely available. Also, someone should probably let him know that the first amendment doesn’t protect child pornography
I don’t think the Constitution is studied almost anywhere, including law schools. In law schools, what they study is what the court said about the Constitution. They study the opinions. They don’t study the Constitution itself.
—  Robert Bork

Don’t Let Romney Bork America (by PFAWdotorg)

Modern Liberalism

"If we slide into a modern, high-tech version of the Dark Ages, we will have done it to ourselves without the assistance of the Germanic tribes that destroyed Roman civilization. This time we face, and seem to be succumbing to, an attack mounted by a force not only within Western civilization but one that is perhaps its legitimate child.

"The enemy within is modern liberalism, a corrosive agent carrying a very different mood and agenda than that of classical or traditional liberalism. That the modern variety is intellectually bankrupt diminishes neither its vitality nor the danger it poses. A bankrupt philosophy can reign for centuries and, when its bankruptcy becomes apparent, may well be succeeded by an even less coherent outlook. That is what is happening to us now. Modernity, the child of the Enlightenment, failed when it became apparent that the good society cannot be achieved by unaided reason. The response of liberalism was not to turn to religion, which modernity had seemingly made irrelevant, but to abandon reason. Hence, there have appeared philosophies claiming that words can carry no definite meaning or that there is no reality other than one that is “socially constructed.” A reality so constructed, it is thought, can be decisively altered by social or cultural edict, which is a prescription for coercion.”

Robert Bork, "Slouching Toward Gomorrah"

[A] society deadened by a smothering network of laws while finding release in moral chaos is not likely to be either happy or stable.

Robert Bork (1927- ) 

Circuit Judge for U.S. Court of Appeals

[Some] constitutional conservatives love to talk about “the Madisonian Dilemma” (I’m convinced they use the term because it’s little known, so it blocks open dispute, which is what would happen if they simply talked about “balancing majority vs minority rule”) as what they understand that libertarians don’t. Of course, there is usually little justification offered for the principles laid out in the dilemma, it’s simply sufficient that they are, and it’s a founding father, so “you don’t want to betray the constitution by contradicting a founding father do you?” Robert Bork tried to use that dilemma as one of his main points against Roe vs Wade, since it leaped ahead of the country’s own democratic processes.

Of course, the problem with this issue is the fact that the real constitutional issues with Roe vs Wade had less to do this lack of deference to legislatures (something which “con-cons” are inconsistent on, since they generally loathed the recent ACA ruling which also twisted itself into knots trying to defer to Congress), but with the free form interpretation of constitutional precedent that wound up just ignoring the question of life altogether. It wasn’t strictly necessary that the court say the constitution says or was understood to mean that life starts at conception, because that’s not really true, but it could say “we can’t decide this case because a court can’t decide what human lives count”. 

One might say “but that’s still an application of the Madisonian dilemma”. Ok, sure, if the dilemma basically just applies to limitations on the judiciary. But constitutional conservatives tend to use that argument as applied to the constitution in general, thus reversing the doctrine of enumerated powers and the Ninth Amendment so that the federal government can by democratic majority ban anything not explicitly forbidden to it (which again, is not even consistent with the policy beliefs of con-cons except when it comes to the typical areas where a conservative might defend rampant interventionism). Not only is that itself a betrayal of the constitution, but it capitulates to the doctrine of judicial supremacy, since it makes it irrelevant if the executive and legislative branches are paying attention to the constitution. If the Madisonian Dilemma means that we have to approach the constitution in the same way that befits the supreme court, then this functionally makes the courts supreme over the constitution. This is contrary to everything constitutional conservatives are supposed to believe.

The only two explanations I can imagine for this inconsistency are that either a) it’s a reactionary interpretation of Madison, and thus unwittingly gives ground it shouldn’t or b) the whole point of bringing up the dilemma is to say “look, you can’t have a right to everything because democracy has to let people make lots of constraints on rights, so here’s a list of things which happen to comport with our policy goals that are acceptable to restrict; if you start restricting the rights we care about though that’s completely unacceptable.” Which, again, makes everything come down to either some highly technical doctrines by which you could preserve the rights you wanted while ditching the ones you wanted to ditch, or just make it all a matter of “good judgement”, which is so contrary to American jurisprudence that it makes me gag to think that supposed devotees of the constitution would think that way.


Bjork, Oh So Quiet

Relax everybody! Robert Bork died, not Bjork. Just trying to save y’all the suffering I had for about 5 minutes this morning. You’re welcome. 

Despite a Failed Nomination, Robert Bork's Legacy Lives On at the Supreme Court

Written by Jessica Mason Pieklo for RH Reality Check. This diary is cross-posted; commenters wishing to engage directly with the author should do so at the original post.

There are few personalities in the legal profession that are divisive as Robert Bork. And, while his name has not often come up this election cycle, his legacy with the Supreme Court and possibility that his vision will shape its future deserves to be discussed.

Bork, who currently serves as the chairman of Mitt Romney’s Justice Advisory Committee, built a career on divisive partisan politics, beginning in 1973 when, as solicitor general, he fired Archibald Cox as special prosecutor to facilitate Richard Nixon’s attempted coverup of the Watergate scandal. In 1987, then - president Ronald Reagan nominated Bork to the Supreme Court. Bork’s nomination went down in flames as the Senate rejected him by a vote of 58 to 42, the largest margin in American history.

Bork’s candidacy was largely rejected because of his strong opposition to civil rights and women’s reproductive freedoms. Bork flat - out rejects the idea of a constitutional right to privacy, believes both Griswold v. Connecticut and Roe v. Wade were wrongly decided and thinks there is no such thing as gender discrimination under the law. While those views are what tanked his nomination, they’ve managed to find a place in the jurisprudence of the high court still, proving the tenacity of the Bork legacy.

Read the rest here.