“Borked” [verb] – a new word added to the American lexicon in 1987 after the U.S. Senate rejected President Reagan’s nomination of former U.S. solicitor general and federal Court of Appeals judge Robert H. Bork to the United States Supreme Court.
Judge Bork, who died last week in Arlington, Va. at the age of 85, was “borked” because of his excessively unpalatable ultra-right-wing socially conservative judicial philosophy. To supporters, getting “borked” is what happens to a nominee rejected for political motives instead of qualifications.
But of course we know that all motives in the Senate are political and there is no question in my mind that the elevation of Robert H. Bork to the Supreme Court would have resulted in a political disaster for Americans. This man was palpably unqualified to be a judge much less a Supreme Court Justice.
Bork was the archetypal personification of that angry old white man in a position of authority stomping upon the rights of minorities. He was well known for his opinion that most American judges, acting to please the liberal elite, have hijacked the struggle over national values by overstepping their role, especially in many of the most important decisions on civil rights and liberties, personal autonomy and regulation of business.
Actually, like all social conservative jurists, he wanted to impose his own religiously oriented draconian concepts of national values on the nation and he was not afraid to say so. Conservative judges overstep their roles just as much as liberal judges do.
Just like Antonin (Scary) Scalia and Clarence Thomas do today, Robert Bork advocated a view of judging known as “strict constructionism,” or “originalism,” which seeks to limit constitutional values to those explicitly enunciated by the framers and to reject those that evolved in later generations – that is when it suited his purposes.
He thought that majorities, through legislatures, should be empowered to make all decisions not specifically addressed in the Constitution. He railed, for example, against Supreme Court decisions in the 1960s and ’70s which held that the Constitution implicitly recognizes a right of privacy that bars states from outlawing abortion or the use of contraceptives by married couples.
In 1963 Bork wrote an article for The New Republic condemning the public accommodation sections of the proposed 1964 Civil Rights Act aimed at integrating restaurants, hotels and other businesses. The magazine replied rejecting his reasoning and pointing out that restaurateurs were not legally permitted to reject service to well-behaved whites and that the new law intended simply to extend that principle to blacks.
In a 1971 article in The Indiana Law Journal, Bork argued that the First Amendment’s protection of free speech had been wildly extrapolated beyond the intent of the Constitution’s framers. He maintained that free speech existed to perpetuate the process of self-government; therefore only explicitly political speech about governing was protected.
Bork thought that the Supreme Court decision in Roe v Wade was a travesty; that civil-rights laws were a violation of the freedom of businesses; and that the Court’s imposition of the one-person-one-vote rule amounted to a judicial overreach.
His role in Watergate occurred in 1973, when President Nixon wanted to keep a special prosecutor, Archibald Cox, from gaining access to incriminating White House recordings and ordered him fired. The attorney general, Elliot L. Richardson, and his deputy refused and quit. Mr. Bork, as solicitor general, was next in line to carry out the president’s orders, and he did, firing Mr. Cox and his entire staff.
So much for the moral integrity of Robert H. Bork; his five years on the federal bench showed a record of stark unreasonable conservatism; he often denied plaintiffs the right to a court hearing, and showed strong deference to the executive branch over Congress.
“Robert Bork’s America,” opined Senator Edward M. Kennedy, in a speech after Bork’s nomination, “is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.”
“He looked, and talked, like a man who would throw the book at you — maybe like a man who would throw the book at the whole country.” observed Tom Shales, television critic for The Washington Post, about Bork’s senate confirmation hearings testimony.
Pennsylvania senator Arlen Specter quoted Judge Bork as having written that under the Constitution, executive power had to evolve. Why then, he wanted to know, shouldn’t other constitutional concepts — like individual liberty — have a chance to evolve as well? He accused Judge Bork of selecting evolving rights based on his own preferences rather than neutral principles.
After his defeat, Bork retired from the Circuit Court and took up positions at conservative ideological groups and law schools, writing and speaking against what he saw as the moral decline of the country. “Churchgoers aren’t very powerful, given their numbers,” he said. “And the intelligentsia is powerful, far beyond their numbers, because they control the hype of television. They control Hollywood. They control the newspapers. They control the foundations. They control the universities.”
In 1989, Bork published his best-selling book “The Tempting of America: The Political Seduction of the Law” describing a number of rulings as “judicial legislation” by inappropriately activist judges. He said he had become the symbol that liberals needed to destroy. In 1996, he published “Slouching Toward Gomorrah: Modern Liberalism and American Decline,” also a best seller. This book took aim at egalitarianism, individualism and other liberal ideas, saying they go against natural law.
“A decline runs across our entire culture,” he wrote, and “the rot is spreading.”
So it is apparent that Robert H. Bork was appalled with the concepts of equality and individualism which are both cherished American values in my opinion.
For those reasons alone, I’m mighty glad he was borked.