When McCain loved Robert Bork

May 6, 2008

When Reagan nominated Robert Bork for the Supreme Court, he made things pretty easy for his Democratic critics. Before becoming a nominee, Bork had said or written all kinds of bizarre and scary things. Once his hearings began, Bork could have distanced himself from his record, but instead he tried to justify his body of unhinged right-wing work, as anyone with confidence in his or her beliefs might.

So, when Ted Kennedy noted, for example, that Bork supported a law that imposed a poll tax on voters, Bork acknowledged his position and said, “It was only $1.50.”

I mention this, following up on an earlier item, because John McCain spoke this morning on his commitment to nominating conservative judges to the federal bench if elected president. Bork’s name didn’t come up in his speech, of course, but so long as McCain’s intentions with regards to the judiciary are on the front-burner today, let’s take a closer look at the 1987 speech McCain delivered on the Senate floor on Bork’s behalf.

“I would like to explain why I am going to vote of favor of confirmation [of Robert Bork], and why I do so without any hesitation … I believe that what the Senate should appropriately examine in a nominee are: Integrity and character, legal competence, and philosophy and judicial temperament. I believe Robert Bork is well qualified in all four respects … Judge Bork’s honesty, integrity, and diligence are above reproach … [he] demonstrates that he is not some intellectual ‘loose cannon on deck,’ or a quixotic maverick jurist , but is a thoughtful, reasonable, jurist … [he] is hardly a radical, but is rather a very thoughtful judge in synch with the vast majority of his colleagues on the bench. […]

“First, and most importantly, is the question of Judge Bork’s view of the role of the judiciary. Judge Bork is clearly a believer in judicial restraint. He believes that the courts should not create social policy or arbitrate social policy disputes unless the Constitution clearly speaks to the issues. He believes that in our republican form of government such decisions are properly left to legislatures elected by the people, not Federal judges appointed for life. I have no problem with that view, because I wholeheartedly agree with it. […]

“I have no problem with my colleagues voting against Bork if they truly believe he is unfit for the Supreme Court – although I personally cannot conceive of how you could reach that conclusion … I believe Robert Bork will be an outstanding Justice and contributor on that Court … Robert Bork deserves our support and will be a great Supreme Court Justice.”

I realize 1987 was a while ago (I was 14 during the Bork hearings), and many may have forgotten the judicial record McCain was defending so enthusiastically.

Back in 2005, Jonathan Chait had an item on Bork that is no longer online. (Update: Never mind, it is online — thanks to P.M. for tracking it down)

The funny thing is that the memory of the campaign to demonize Bork as a right-wing nut has grown stronger even as the intervening years have shown quite clearly that Bork is, in fact, a right-wing nut.

The most famous hyperbolic charge against Bork — one which has been invoked far more often against Bork’s accusers than it ever was against Bork — was Sen. Ted Kennedy’s claim that “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters,” etc., etc.

This was far from the sort of fair summation of the totality of Bork’s legal philosophy that you might find at a law school seminar. But it wasn’t exactly false either. Bork had criticized the portion of the Civil Rights Act banning discrimination in public accommodations, argued against extending the equal protection of the 14th Amendment to women, took an extremely restrictive view of free speech, and so on.

And while Bork’s record was drawing public scrutiny, McCain went out of his way to insist that Bork “is hardly a radical,” and not at all a “loose cannon,” but actually just a “thoughtful, reasonable, jurist.” McCain said he “wholeheartedly” agreed with Bork’s role of the judiciary, and couldn’t even “conceive” of the notion that Bork was unfit for the high court.

And now McCain wants to appoint Supreme Court justices of his own. Something to think about.

Even more important to remember, mclame was a MAJOR PLAYER in the savings and loan scandal!

Certainly no “straight talkin’ maverick” – he played a critical roll enabling the wholesale looting of the federal treasure – up until that time – the greatest theft and corruption in the history of the world.

No wonder mclame is the heir to dur chimpfurher’s legacy. No wonder that the MSM is trying to annoint shillary as his opponent in the general election.

BASIC ALGEBRA

mclame=bush
shillary=mclame

Therefore, shillary=bush (which is why rush and kkkarl support her)

America was never meant to be a dynasty of special interests fronted by 2 elite families. No bush-clinton-bush-clinton monarchy!

It’s unAmerican.

  • McCain has always, ALWAYS, been a true conservative in almost all things. Why conservatives hate him is beyond my ken, but they do not think of him as one of their own. And Dems and Independants forget that he is neither a maverick nor a straight talker at their own peril. Bork will always be his standard bearer for a truly good conservative justice.

  • I never understood why Bork got himself in so much trouble.

    He said that he wrote provocatively in academic circles because no one gets hurt. When you are a judge, by definition, someone gets hurt.

    That sounds reasonable to me. We all say things that are absurd when our comments don’t affect anything.

    Bork thought the legislature had the right to ban contraceptives. It seems like it an absurdly dumb law but where in the Constitution does it say that a legislature can’t do that?

    If we passed a Constitutional Amendment that said that CB can’t use a computer then CB will have to find a new line of work. It would be an absurd amendment but stupidity doesn’t make it illegal.

    I would much rather have Bork on the Court than Thomas, Scalia, or Alito.

  • I hate bigotry, but I’ve had a difficult time reconciling the 1st amendment’s right to association with laws that require you to engage in commerce with people you don’t want to.

    I’m open to arguments. I’d love to lose. Alas, the 1st amendment seems to allow us to wall ourselves off, even if it’s for stupid reasons. If I don’t want to serve Republicans at my restaurant, I have that right. It’s suicidal, but I can do it.

    Just as hate speech is protected, not all constitutional rights are an unadulterated good. Liberty allows some people to be wretches.

  • Neil,

    He said that he wrote provocatively in academic circles because no one gets hurt.

    Bork may have claimed that, but it doesn’t make it true. The “academic circles” he wrote for have shaped generations of lawyers. Lawyers like Yoo who argued that the Geneva Conventions should be ignored. Lawyers like Addington who believe that during “times of war” there are no constraints on the Executive Branch.

    To make the claim that writings in academia have no impact whatsoever is mind-boggling in its shortsightedness.

  • That’s some first rate sophistry there, neil. Continuing your line of “reasoning”, where in the Constitution does it say that the legislature can’t pass a law against breathing? Hey, wow, I guess they could.

    Just because something isn’t explicitly enumerated and protected by the Constitution doesn’t mean that Congress can outlaw it. There are all sorts of implicit protections. And then there’s the 10th Amendment.

    And there are 300 million people in the country, and 9 Supreme Court justices. While it may be true that writing batshit-crazy stuff in academic journals does not necessarily imply that one would make batshit-crazy decisions on the court, I for one would prefer to play it safe and pick someone who is on record as being consistently sane.

  • Bork:
    ‘It was a very small tax, it was not discriminatory, and I doubt that it had much impact on the welfare of the nation one way or the other.”
    and later as quoted above: ”It was just a $1.50 poll tax.’

    The case in question was Harper v. Viriginia in 1966. A $1.50 was worth a lot more in 1966 than it is now. For poor folk, I would think that was a material deterrent to voting. Sounds discriminatory to me.

  • Hmmm. . . 2008-1987=21, 21+14. . . hey! you’re now old enough to run for President, CB! 🙂

  • toowearyforoutrage: You’ve hit on an important point, and one I’ve struggled with, too. I think one of the key differentiators is a commercial operation versus who you, as an individual, choose to associate with. So, while you may personally choose not to associate with Republicans, once you get a business license and open a commercial enterprise, your business has a social obligation to be non-discriminatory. Your business does not have the same right of association that you do.

    Unfortunately, it’s not an entirely satisfying outlook, since the waters are muddy about what Constitutional rights businesses have. Plus, the libertarian in me wants to say “well, why not let businesses discriminate, because it is suicidal.” But that’s putting an abstract concept above the basic practical good of everyone knowing that they can walk into any business and buy something. Sometimes pragmatism needs to win.

  • As far as the poll tax, the amount is not the point, the point is that the legislature can charge citizens to vote. There would be no constraint to increase the charge to $15.00, $150.00, $1500.00 etc.
    So, perhaps the ruling party doen’t want “your kind” to vote, or even be seen in the better places in town, well, that’s OK,
    Correct me if I’m wrong, but that’s not America.

  • …and McCain’s speech in support of his vote was about as well reasoned as my 7th grade book report.

  • The ORIGINAL INTENT of the writers of the Constitution were to leave the requirements to vote up to the states.

    You might need 10 acres of land to vote in Georgia but you might only need 1/4 acre to vote in Rhode Island.

    Amazing how times have changed.

    Anyway, when was the 24th amendment passed?

  • Anyway, when was the 24th amendment passed?

    January, 1964

    Perhaps there could be a requirement that you owned slaves, too. Since that was part of the culture for the writers of the Constitution, we need to look at what was going on THEN verses what is going on NOW in the U.S,, as far as original intent, eh?

  • Yes, the Bork hearings were a long time ago, but the over 50 crowd should remember them well. The hard core GOP in that group will like McCain more when they hear he supported Bork because they believe the man was unfairly shot down by a democrat(ic) congress. But the over 50 crowd of independents, women and centrist democrats, many of whom I presume lean toward Hillary and a disturbingly large subset of whom are now answering those poll questions saying they will vote for McCain if Obama is the nominee, might just be swayed back to the party with this news.

  • And his past Bork support might help persuade black voters to come out and vote for Hillary should she wind up the nominee, no matter how unlikely that may be. These are the types of issues that, at the end of our political day, unify us as democrats and make me laugh at the hyperventilating Russert/Matthews’ of the world as they spread their crap about how badly this long campaign has crippled the democratic party..

    • Comments are closed.