So many provocations, so little space and time. But Ernest Dumas picks up one of Mitt Romney's many thoughtless utterances and views it with some alarm.
This was that Romney might look to Robert Bork for guidance on matters legal.
Robert Bork? Read on for a refresher in Ernie's column this week, along with a cartoon George Fisher drew up for Dumas when he wrote about the failed U.S. Supreme Court nominee almost 25 years ago. This is personal, Arkies. Bork would have really Borked the state on the Grand Gulf power plant, had his legal reasoning prevailed.
By ERNEST DUMAS
If you are a woman, worker, consumer, conservationist, minority or just an ordinary Arkansan, here is an ominous development: Mitt Romney says that if he is elected president he will bend an ear to Robert Bork anytime a question comes up about justice, like appointments to the federal courts.
People are supposed to just think Bork=conservative, but in his prime Bork worried a lot of conservatives. You may remember the explanation of the Republican senator from Virginia, John Warner, when he voted against Bork’s confirmation as a Supreme Court justice in 1987: “I cannot find in him the record of compassion, of sensitivity and understanding of the pleas of the people to enable him to sit on the highest court of the land.”
Six Republicans broke with their president and voted against Bork, whose rejection, 58-42, was the largest in history. His record of legal opinions, articles and speeches had spilled out and it was not heartening to many people: The Constitution’s equal protection clause was not meant for women. The Constitution gives Americans no right to privacy from the government. States should be given back the right to impose literacy tests and poll taxes, the devices we used in Dixie to keep blacks from voting. The First Amendment protects only political speech; the government should be able to restrict any other kind.
But Bork’s view that the Constitution is for the privileged was not his most worrisome notion. Rather, it was that what was important about a case was not the law but the identity of the parties.
Is one party a corporation that is fighting workers, consumers, shareholders, environmentalists or a government regulator? Corporation wins. If a law is challenged, was it a Democratic or Republican act? If they are counting the votes to see who won, stop the counting and declare the Republican the winner. Bork is not on the court, but his school of thought has won the day.
Bork established that legal doctrine on Saturday night, Oct. 20, 1973, when President Nixon ordered his attorney general, Eliot Richardson, to fire Archibald Cox, the Watergate independent counsel who was trying to obtain the secret White House tapes on Watergate. Richardson resigned and so did William Ruckelshaus, the next in command, when Nixon told him to fire Cox. But the third in line, Solicitor General Robert Bork, elevated late in the night to attorney general, instantly obliged and fired Cox, establishing that we were, indeed, a nation not of laws but of men.
No matter how arcane the issue, in Bork’s country there are people who just ought to win because of who they are and what they stand for, and the law is secondary. Women are not in that group. Neither are workers.
Democrats? Not.
Arkansans with a long memory know what I’m talking about. In 1979, Arkansas tried to escape an arrangement by the holding company of the state’s biggest electric utility to make Arkansas customers pay a big part of the Grant Gulf nuclear power units in Mississippi although the power was to be used by people and businesses in Louisiana and Mississippi. Over the next eight years, Arkansas lost that fight before President Reagan’s regulators and the federal courts.
As a result, the power distribution and cost overruns from the nuclear units in Mississippi and Louisiana have cost people in Arkansas, who could ill afford it, more than $4.5 billion. When the case went to the District of Columbia Court of Appeals, the panel upheld the scheme, which required Arkansas to bear 36 percent of the Mississippi and Louisiana costs in perpetuity. But Judge Bork dissented in part. Arkansas homeowners and businesses, he said, should pay not 36 percent but nearly all the costs. Had he prevailed, Arkansas’s subsidy to its neighbors would have been closer to $10 billion. He dreamed up a cockamamie formula that would shift the costs to Arkansas.
Who knows what he had against Arkansas? Given Bork’s disposition, the speculation at the time may have been right. Arkansas was the least Republican of the Southern states. Its two senators were Democrats (both voted against his Supreme Court nomination that year). Its governor, Bill Clinton, had taken a law class from him at Yale and was mildly critical of his nomination. Mississippi and Louisiana and its congressional delegation were on the right side—Bork’s side—on all of that.
But here’s an encouraging thought. Though Romney said he wished that Bork had been on the Supreme Court and making the laws right the last 25 years, he’s too old to take any more vengeance on Arkansas. Isn’t he?
Islam Is a Religion, and Therefore Protected by the Constitution
The Islamic Center of Murfreesboro, Tennessee, under construction (Reuters)
By Wendy Kaminer May 30 2012, 2:56 PM ET
It's unclear whether a procedural victory [ http://www.cnn.com/2012/05/30/us/tennessee-mosque-controversy/ ] for opponents of a controversial Islamic center in Murfreesboro, Tennessee, will delay or permanently enjoin completion of a mosque, under construction since last September. Equally unclear, without detailed knowledge of the facts, are the merits of Chancellor Robert Corlew's ruling that the planning commission had not provided proper public notice of the construction before granting a permit. But if this ruling is not a victory for bigotry (Corlew explicitly acknowledged the Islamic congregation's rights under the First Amendment and a federal statute), it is a victory for the bigots who opposed the mosque out of antipathy toward Islam and the idiotic claim that it is not a religion.
Mosque opponents effectively "put Islam on trial," KATV reports [ http://www.katv.com/story/18647212/judges-ruling-stops-construction-of-tenn-mosque ]. At 2010 hearings, "a string of witnesses questioned whether Islam is a legitimate religion and promoted a theory that American Muslims want to replace the Constitution with extremist Islamic law and the mosque was a part of that plot."
These are not arguments; they're fantasies, and we have heard them all before, often from the same people who would conform constitutional rights (notably rights for gay people and women) to their understanding of biblical law. Still, the ignorance and un-self-conscious hypocrisy that underlies rants about Shariah law are breathtaking.
Here's how Joe Brandon, the plaintiff's attorney in the Tennessee case, explains [ http://www.tennessean.com/article/D4/20120530/NEWS/305300033/Mosque-case-plaintiff-Justice-served- ] opposition to the mosque: "This Shariah-compliant facility must show they are a religious organization, which we vehemently dispute. They are a political organization with Shariah-compliant rules and regulations. Shariah and the U.S. Constitution cannot coexist."
Yes, I know Brandon is an easy target; still, his statement is worth considering. Shariah law is religious law, but because it is the law of a demonized religion associated with terrorism and anti-Americanism, Brandon can label it political, depriving it of First Amendment protections. I don't assume this is a cynical ploy. Blinded by bigotry and their notions of "true" and "false" religions, Islamaphobes may be sincere in the counter-factual belief that Islam is purely political.
That belief is essential to the claim that Shariah law can't be tolerated because it conflicts with the Constitution. Once you acknowledge that Islam is a religion and Shariah law is religious, its conflicts with secular law become arguments for, not against, religious liberty. Of course, Shariah law is inconsistent with the Constitution. So are the tenets of Catholicism, Judaism (especially orthodox Judaism), and most if not all other faiths. Indeed, lawsuits by Catholic institutions challenging health insurance requirements for contraceptive coverage rely on the alleged impossibility of reconciling Catholic articles of faith with secular legal requirements.
Religious and secular laws often conflict; that's precisely why we have a First Amendment. It provides a legal framework for ensuring that religion and government can "co-exist." If religious law were categorically subordinate to the Constitution (as Joe Brandon imagines Shariah law should be), then the Catholic Church would be required to ordain women, Orthodox Jews would have to sit together in shul, and religious groups that oppose gay marriages would be required to perform them.
It's not hard to imagine the uproar that would greet the slightest hint of official interest in violating such basic guarantees of religious liberty, especially if directed against majority or respectable, minority religious practices. It's worth remembering that unpopular religions have long been wrongly denied equal rights: In 1878, the Supreme Court denied Mormons [ http://www.oyez.org/cases/1851-1900/1878/1878_0 ] the right to engage in polygamous marriages, which remain illegal today.
But the same principles of liberty that give religious institutions the right not to sanctify gay marriages should also give them the right to sanctify polygamous ones. The same principles that give Christians the right to build churches in Tennessee give Muslims the right to build mosques, just as it gave Mormons the right to build a prominent temple [ http://www.wbur.org/2011/12/06/romney-mormonism ] in Belmont, Massachusetts -- a temple opposed by many in town, and a temple that Mitt Romney helped build.
President Reagan meeting with Judge Robert Bork in the White House, October 9, 1987. Credit: Reuters/White House
By David Ingram WASHINGTON | Wed Dec 19, 2012 3:35pm EST
(Reuters) - Robert Bork, an American symbol of conservative judicial activism who played pivotal roles in Washington dramas around the Supreme Court and Watergate and whose name became a verb, died on Wednesday at age 85.
Bork died in a northern Virginia hospital where he had been treated for an infection, said Leonard Leo, executive vice-president of the conservative Federalist Society.
Nominated to the U.S. Supreme Court by Republican President Ronald Reagan in 1987, Bork was rejected by the Democratic-led U.S. Senate over his conservative judicial philosophy. He became a potent symbol to conservatives.
"To bork" was added to the Oxford English Dictionary in 2002 with the definition, "To defame or vilify (a person) systematically, especially in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way."
"My name became a verb," Bork told CNN in 2005. "And I regard that as one form of immortality."
Bork was already known to Americans as a figure in the Watergate scandal - the man who carried out Richard Nixon's order to fire the special prosecutor in 1973's "Saturday Night Massacre" - when he was nominated to the Supreme Court.
Within 45 minutes of his nomination on July 1, 1987, Massachusetts Democratic Senator Edward Kennedy took to the Senate floor to denounce him as a man who wanted to outlaw abortion, ban the teaching of evolution and revive racial segregation. Bork said not a line of the speech was accurate.
After a fierce confirmation fight, the Senate in October rejected Bork 58-42, the largest margin of defeat for any Supreme Court nominee and a big loss for Reagan.
JUDICIAL CONSERVATIVE
Bork's judicial conservatism, and especially fears he might vote to overturn abortion rights, led liberal, civil rights and feminist groups to join ranks against him.
They charged that the burly, goateed Bork, then a federal judge, held views too extreme for the highest court. They warned he might cast the decisive vote to overturn the court's 1973 abortion rights decision and endanger anti-segregation rulings of the 1950s and 1960S, despite Bork's assurances he would not disturb "settled law."
His supporters saw a political witch hunt. In later court fights, they used memories of the Bork hearings to rally their conservative supporters.
On Wednesday, supporters remembered him as a pioneer in a school of constitutional thinking devoted to the text and original meaning of the Constitution.
Conservative Supreme Court Justice Antonin Scalia, in a statement released by the Federalist Society, called Bork one of the most influential legal scholars of the last 50 years.
Speaking to Reuters, Leo called Bork "one of our country's fiercest and most articulate defenders of the Constitution as it was written."
Like many other conservative justices - although more outspoken and in great recorded detail - Bork held that judges should interpret the law narrowly according to the "original intent" of the Constitution's framers rather than making new law, which they called judicial activism.
At his confirmation hearings, Bork's long record of writings and decisions as an active jurist made him vulnerable to attack. Among the most controversial were his views that the Constitution contained no generalized right to privacy nor unlimited authorization of free speech.
He did little to help himself in his testimony before the Senate Judiciary Committee, appearing cold and ideological.
But he fired back at critics, denying he wanted to "turn back the clock" and saying he was the victim of a liberal public relations campaign that distorted his record.
"The enormous amount of publicity and public relations that was going on was really unprecedented," Bork said later.
He admitted the White House was caught by surprise by the intense opposition and echoed complaints by conservatives that Reagan should have done more to fight for the nomination. Justice Anthony Kennedy ended up being confirmed to the court in February 1988.
Bork's defeat for confirmation to the Supreme Court was "the decisive moment in politicizing the process of judicial selection," said Michael McConnell, a professor at Stanford Law School and a former federal judge who testified on Bork's behalf at the 1987 hearings. "The scurrilous attacks on his views and his character set a new low for the process, and has poisoned the atmosphere for judicial confirmations ever since."
Bork was bitter for years afterward and conservatives regarded him as a martyr to liberal activism and unreason.
Three months after the Senate quashed his nomination, Bork resigned as a judge on the U.S. Court of Appeals for the District of Columbia Circuit after six years of service and went into private law, scholarship and commentary, supporting conservative causes for years to come.
One stint was as an "expert consultant" to television broadcasters covering the 1991 confirmation hearings for another controversial Supreme Court nominee, Clarence Thomas.
Bork was also active in the background during the attempt the impeach President Bill Clinton in the late 1990s, lending his expertise and support to the impeachment process.
Before his nomination debacle, Bork had been best known for the brief role he had played as U.S. solicitor general at the Justice Department in a notorious 1973 Watergate episode.
He carried out Nixon's order to fire Watergate Special Prosecutor Archibald Cox, who was demanding the release of Oval Office tape recordings Nixon wanted kept secret.
Bork's immediate superiors - Attorney General Elliott Richardson and his deputy - quit rather than fire Cox, stirring public outrage in what became known as "The Saturday Night Massacre."
The backlash ultimately led to Nixon's resignation, under threat of impeachment, in August 1974.
Bork later said he followed Nixon's order to prevent "massive resignations" at the Justice Department and restore order there.
Bork remained outspoken on judicial nominations. In 2005, when President George W. Bush nominated White House counsel Harriet Miers to succeed retiring Supreme Court Justice Sandra Day O'Connor, Bork was a leader among conservatives in opposing Miers.
He called her a "disaster," largely because of her lack of conservative credentials and constitutional-law experience. Miers pulled out and Bush nominated Samuel Alito, who was confirmed by the Senate in January 2006.
Robert Bork was born in Pittsburgh on March 1, 1927, and graduated from the University of Chicago Law School in 1953. Before becoming a judge, he was a professor at Yale Law School, where he supported students who came together to form the Federalist Society, a legal movement that aimed to counter what they viewed as the intrusion of judges into people's lives. He converted to Catholicism in 2003.
In 2011, Republican presidential candidate Mitt Romney appointed Bork co-chair of his Judicial Advisory Committee, to advise the campaign on judicial nominations and legal policy questions.
(Additional reporting by Terry Baynes and Joan Biskupic; Editing by Eddie Evans and Vicki Allen)
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