Many presidents leave their most enduring legacy to the nation in the Justices that they name to the Supreme Court and the federal judges that they put on the bench. So what inspired former Massachusetts governor Mitt Romney to name former judge Robert Bork to co-chair his presidential campaign advisory committee on law, the Constitution and the judiciary?



Surely Governor Romney meant to persuade activists on the Religious Right and in the Tea Party that he is ready to do battle-- not just to entrench the Corporate Court that rules today, but to nominate people to the bench who will dismantle what remains of modern civil rights and civil liberties law. What better proof that the formerly pro-gay rights and pro-choice Massachusetts governor has completed his conversion to right-wing conservatism than to pick America’s scowling critic of abortion, gay rights, free speech, progressive regulation and the separation of church and state as his constitutional in-house counsel? Even if it fails to convince the Right that Romney is a deep-down true believer like Rick Santorum or Michelle Bachmann, at least his appointment of Bork expresses his complete and total surrender to the most right-wing forces in the Republican Party.



But what does this appointment say to the rest of us? Surely Romney must be assuming that it is safe to accede and pander to the Right because we have all forgotten about Bork’s anti-consumer, anti-environmental and anti-worker record as a judge, not to mention his snarling opposition to women’s rights, civil rights and civil liberties-- the hard-core positions that moved the Senate to reject his nomination by President Ronald Reagan to the United States Supreme Court on a bipartisan vote of 58-42.



Romney is also presumably trusting that, ever since Bork resigned from the United States Court of Appeals for the District of Columbia Circuit to launch a career as a conservative polemicist with the American Enterprise Institute, most of the public has tuned out his increasingly bitter diatribes against the “feminized” Supreme Court and his embarrassing tirades against “American cultural decline,” and the social “rot and decadence” of our country.



But Romney’s elevation of Bork to advise him on the kinds of judges who should serve on the Supreme Court and the federal bench spells serious trouble for the American people. At a time when a pretty reliable 5-4 majority on the Supreme Court is already sanctifying the power of large corporations and closing down individual Americans’ access to the courts, when reproductive freedom and voting rights hang by a thread, it is a cause for public alarm that Romney wants to try once again to put Robert Bork in the driver’s seat of America’s constitutional journey.



...Robert Bork first gained public prominence when he took leave from Yale Law School to serve as Solicitor General of the United States under President Richard Nixon. From that position, Bork was catapulted to dubious national fame when he became the trigger-man for Nixon’s “Saturday Night Massacre” of Watergate Special Prosecutor Archibald Cox, who proved too diligent in the discovery process by demanding Nixon’s secret taped recordings of his Oval Office conversations. When Nixon ordered both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus to fire Cox, they refused and resigned rather than carry out Nixon’s order. Only when Nixon made his way down to the level of Solicitor General Robert Bork did he find a willing accomplice and, apparently, a kindred spirit. Bork became the Acting Attorney General and promptly fired Archibald Cox. At the time Bork insisted that he was acting simply to stabilize the Justice Department, but he later cited Archibald Cox’s association with “Nixon’s despised and feared political enemy, Senator Edward Kennedy” and the Kennedy family as a convoluted justification for this naked assault on independent law enforcement, which led to passage of the Independent Counsel Statute.



...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.



In August 1987, during his Supreme Court confirmation fight, the Public Citizen Litigation Group published an exhaustive and devastating report on Judge Bork’s judicial record. The authors could find no “consistent application of judicial restraint or any other judicial philosophy” in Bork’s work on the Court. Rather, by focusing on split decisions, where judicial ideology is made most plain, Public Citizen found that “one can predict [Bork’s] vote with almost complete accuracy simply by identifying the parties in the case.” When the government litigated against a business corporation, Judge Bork voted for the business interest 100% of the time. But when government was challenged by workers, environmentalists and consumers, Bork voted nearly 100% of the time for the government.



In the crucial field of administrative law, for example, “Judge Bork adhered to an extreme form of judicial restraint if the case was brought by public interest organizations. His vote favored the executive in every one of the seven split decisions in which public interest organizations challenged regulations issued by federal agencies.” In these cases, Judge Bork defended, for example, Reagan administration rules relating to the environment, the regulation of carcinogenic colors in food, drugs and cosmetics, the regulation of companies with television and radio licenses, and privacy rules in family planning clinics. Similarly, in the six split decisions relating to civil rights and civil liberties where the government was a party, Judge Bork “voted against the individual every time.” In one of these cases, Dronenburg v. Zech, Judge Bork wrote a 1984 opinion upholding the Navy’s discharge of a sailor for being gay and used the opportunity to attack the Supreme Court’s entire line of authority, beginning with Griswold v. Connecticut, which articulated a constitutional right to privacy in matters relating to sex and procreation.



Yet, in the eight split decisions where a business interest challenged the government, Judge Bork voted straight down the line for business every time.



On July 1, 1987, President Ronald Reagan nominated Bork to the Supreme Court, setting off a profound national debate about the meaning of the Constitution and the role of the Justice. Is the Constitution the expansive charter of the freedoms and liberties of the people, as Justices like William Brennan and Thurgood Marshall argued, or is it a straitjacket on democratic freedom designed primarily to protect those with power, privilege, wealth and property? Bork’s performance was not reassuring. In his most reflective moment at his confirmation hearings, he told the Senate Judiciary Committee that he wanted to serve on the Court because it offered him an “intellectual feast,” but most Americans rapidly came to the conclusion that, if Bork were seated at the table, they were themselves going to appear somewhere on the menu.



Bork’s opposition to reproductive freedom as a constitutional principle, his skepticism about modern civil rights law, his blithe constitutional acceptance of poll taxes and literacy tests, his reflexively pro-corporate, anti-worker and anti-environmentalist stances, his historical U-turns and dodgy answers all inspired a huge popular mobilization against him. Ultimately, his nomination was defeated with a strong, bipartisan vote of 58-42, with six Republicans voting no and two Democrats voting yes. (Lest one reach the conclusion that the Senate would have rejected anyone nominated to the Court by President Reagan, the body ultimately confirmed, by a vote of 97-0, the deeply conservative Anthony Kennedy, who later came to author the Court’s devastating Citizens United decision.)



...As a judge, Bork regularly took the side of business interests against government regulators trying to hold them accountable, but the side of government when it was challenged by workers, environmentalists and consumers pressing for more corporate accountability. Indeed, a characteristic business-oriented opinion by Bork became a crucial point of discussion in his Supreme Court confirmation hearings. In a 1984 case called Oil, Chemical and Atomic Workers International Union v. American Cyanamid Co., Judge Bork found that the Occupational Safety and Health Act did not protect women at work in a manufacturing plant from a company policy that forced them to be sterilized-- or else lose their jobs-- because of high levels of lead in the air. The Secretary of Labor had decided that the Act’s requirement that employers must provide workers “employment and a place of employment which are free from recognized hazards” meant that American Cyanamid had to “fix the workplace” through industrial clean-up rather than “fix the employees” by sterilizing or removing all women workers of child-bearing age. But Judge Bork strongly disagreed. He wrote an opinion for his colleagues apparently endorsing the view that other clean-up measures were not necessary or possible and that the sterilization policy was, in any event, a “realistic and clearly lawful” way to prevent harm to the women’s fetuses. Because the company’s “fetus protection policy” took place by virtue of sterilization in a hospital, outside of the physical workplace,the plain terms of the Act simply did not apply, according to Judge Bork. Thus, as Public Citizen put it, “an employer may require its female workers to be sterilized in order to reduce employer liability for harm to the potential children.”



Like Governor Romney, Bork is adamant that Roe v. Wade (1973) be overturned and states be given the power to prosecute women and doctors who violate state criminal abortion laws. As Bork promises in one of his books, “Attempts to overturn Roe will continue as long as the Court adheres to it. And, just so long as the decision remains, the Court will be perceived, correctly, as political and will continue to be the target of demonstrations, marches, television advertisements, mass mailings, and the like. Roe, as the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century, should be overturned. The Court’s integrity requires that.” Bork, as Romney’s judicial advisor, will be pushing for an anti-choice litmus test to save the Court’s “integrity.” Clearly he will find a receptive audience for that view in Governor Romney. Beyond abortion, Bork denounces the Supreme Court’s protection of a constitutional right to privacy in decision-making with respect to birth control in Griswold v. Connecticut and Eisenstaedt v. Baird. He does not think this right exists in the Constitution and calls the Ninth Amendment-- which states that the “enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”-- an “inkblot” without meaning. But the whole purpose of the Ninth Amendment was precisely to prevent authoritarians in government from claiming that people lack rights because they were not explicitly identified in the Constitution.



Bork is a determined enemy of feminism, a political force that he considers “totalitarian” and in which, it is clear to him, “the extremists are the movement.” Whereas women and men all over America cheered the Supreme Court’s 7-1 decision in United States v. Virginia, which forced the Virginia Military Institute to stop discriminating and to admit its first women cadets, Bork attacks it for producing the “feminization of the military.” He writes: “Radical feminism, an increasingly powerful force across the full range of American institutions, overrode the Constitution in United States v. Virginia.” This decision, for him, was no aberration: “VMI is only one example of a feminized Court transforming the Constitution.” This stance puts him in the bizarre position of describing arch-conservative former Chief Justice William Rehnquist, who concurred in the judgment, as a participant in the radical feminist takeover of the Court. Against the feminized Court, Bork brings his passionate conviction that, outside of standard “rational basis” review, “the Equal Protection Clause should be restricted to race and ethnicity because to go further would plunge the courts into making law without guidance from anything the ratifiers understood themselves to be doing.” Thus, if Bork and his acolytes have their way, decades of Supreme Court decisions striking down gender-discriminatory laws under the Equal Protection Clause will be thrown into doubt as the Court comes to examine sex discrimination under the “rational basis” test, the gentlest and most relaxed kind of judicial scrutiny.

Bork routinely castigates the Court for removing religious prayers from different public school contexts, including commencement exercises and high school football games. He does not believe in the Jeffersonian “wall of separation” between church and state, but rather seems to dabble in the Clarence Thomas theory that the Establishment Clause applies only against federal establishment of an official national church, not religious impositions on citizens by state governments. Writing for the Ave Maria Law Review, the home journal for the law school where he now teaches, Bork makes no bones about his pinched understanding of the Establishment Clause: “If the various Justices take the original understanding of the Clause more seriously than their own precedents, the ‘wall’ will crumble,” he wrote. Meanwhile, Bork increasingly endorses the most extreme right-wing attacks on science and the theory of evolution, writing that “the fossil record is proving a major embarrassment to evolutionary theory” and claiming that one scientist “has shown that Darwinism cannot explain life as we know it.” In Bork’s view, right here at home, “America is engaged in a religious war.”

If you follow me on Twitter you've probably seen me tweeting the Romney quote in the title of this post over the last week or so. I had an advance copy-- I'm a member of People For the American Way; you could be too -- of Jamie Raskin's Borking America , the best report I've ever seen on the dangers inherent to Romney's control over the selection of federal judges.If you think the above was informative, you should be sure to read the rest of this frightening report . And if it's been dawning on you that Bork has been a general in the Republican War Against Women... well, don't worry, he's also a general in the Republican War Against Gays, the Republican War Against Art, the Republican War Against Civil Liberties... the Republican War Against everything. I'll leave off with one last quote, concerning his antipathy to the separation of church and state:

Labels: judiciary, Mitt Romney, PFAW, Supreme Court