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June 22, 2010

Tan, rested, back in the saddle: Will Bob Bork ride Elena Kagan?

Call it a reckoning. See yesterday's Washington Post and this Salon piece: "The Borking of Elena Kagan". Both report that Robert Bork will publicly oppose Elena Kagan's nomination to the Supreme Court. While Bork, now 83, may or may not have been a morally pretentious weenie, he is mega-talented, a fine legal thinker, and likely would have made a fine Supreme Court justice. In any event, Bork would have been a marked improvement over Clarence Thomas as a touchstone for the right on the most elite court in Western history. Most lawyers of any political persuasion now admit that. "Borking" Bork in 1987 was not one of our finest moments--and yet we continue to insist on over-playing partisan politics with fine judges and solid lawyers in the nomination process. Not one of the better modern traditions of Congress. So let's Not Be Borking anymore--starting with Elena Kagan. Finally, another issue, and it's cultural, at least for this blog. With John Paul Stevens gone, who will wear bow ties?


1987: Bork gets a plug from a former president and the undersigned's ex-Congressman in Grand Rapids, Michigan.

Posted by JD Hull at June 22, 2010 06:56 PM


I gotta disagree on this one. The "borking" of Robert Bork is one of those myths that won't die. He was rejected because his views were so far out of the mainstream they could not be tolerated. He opposed the Civil Rights Act vociferously when it was passed, and his recantation upon nomination in '73 as Solicitor General reeked of being a nomination conversion, and his expressed views even after that on specific civil rights cases made plain his devotion to property rights over civil rights.

In the hearings, he promised to keep an open mind on the right to privacy and Roe v. Wade, but the doubts of his sincerity proved true when, after the hearings, he wrote, "It is mind-boggling that citizens were admonished that accept Roe because they”must respect the 'rule of law.' Both Roe and Casey are, in fact, crass violations of the rule of law; they are not rooted in any conceivable interpretation of the Constitution, and have nothing to do with “constitutional terms.” Doesn't sound like he really had an open mind, does it?

And he thought the right to free speech did not extend to art and literature. You celebrate Bloomsday? He would've been fine with the banning of Ulysses as obscene.

Saying he would've been an improvement over Clarence Thomas is pretty damn faint praise. The only qualification I see he has over Thomas is partial honesty about his views on the Constitution. But let's get over the idea he was smeared. What's the problem with rejecting a guy because his views are too extreme?

Posted by: Peter Friedman at June 22, 2010 09:53 AM

most elite court in Western history...

really? name a person, except Robert Bork, whose life would have been better, had be been appointed to the Court?

JD, the current court is the intellectual successor to Roger Taney and the Dred Scott decision. Scalia worships Taney, calling him a great chief justice.

Scalia, Bork, Roberts, Alito, Thomas --- they all dream of writing Dred Scott II, a conservative opinion manifesto that will plunge the nation into a second civil war. They may do it by preventing public funding of elections. At their core, all reject modernity and are wholly lacking in character or judgment in the same way that Taney was flawed to the core.

If you are a good student of history you will recall that the fight to keep Taney off the Supreme Court was as brutal as the defeat of Bork.

Last, what is most ironic is that Taney's only claim is Ex parte Merryman and yet his followers will do anything they can to gut the great writ, with Scalia and Thomas of the opinion that actual innocence is not grounds for release from prison or overturning of death sentence

Posted by: John Davidson at June 22, 2010 01:06 AM

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