# Should Bork have been borked? **URL:** \ **Category:** Great Debates\ **Created:** [March 25, 2022, 5:11pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709 "2022-03-25T17:11:34Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [March 25, 2022, 5:11pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/1 "2022-03-25T17:11:34Z")
Bork Bork Bork. There, got that out of my system. Now, Robert Bork is just about the most famous Supreme Court rejection in history. While that might not be saying much, it is often cited as the start of a very dirty trend in modern politics to make the Supreme Court selection process highly polarizing, and taught the new generation of nominees to be as bland as possible, even going so far as to pretend that they’d never considered Roe v Wade. Was it fair? Was he an extreme jurist? Was it because he participated in the firing of the special prosecutor investigating Nixon - at Nixon’s behest - after two other people resigned in protest? I was too young to recall Judge Bork’s confirmation process, but I do note these comments, from an interview in 2011 > [@](#): > > ask Bork if he still disagrees with the high court’s _Griswold v. Connecticut_ ruling that married couples have a constitutional right to the use of contraception? > > “Oh, my God, yes!” > > And does he still believe that the First Amendment should be limited to political speech and not protect, as he once wrote, “any other form of expression, be it scientific, literary or…pornographic”? > > “Oh yes!” he answers enthusiastically. “If you look at what they say, the First Amendment supposedly defines things like child pornography. The Supreme Court said there was a right to it. That’s actually insane.” > > How about the Equal Protection Clause of the 14th Amendment? Does he still think it shouldn’t apply to women? > > “Yeah,” he answers. “I think I feel justified by the fact ever since then, the Equal Protection Clause kept expanding in ways that cannot be justified historically, grammatically, or any other way. Women are a majority of the population now—a majority in university classrooms and a majority in all kinds of contexts. It seems to me silly to say, ‘Gee, they’re discriminated against and we need to do something about it.’ They aren’t discriminated against anymore.” So, yeah, an extremist. And so I don’t begrudge a Democratic senate from saying no; it’s their constitutional prerogative. But I’d rather hear your thoughts. > **[Robert Bork’s Romney Connection](https://web.archive.org/web/20111107030108/https://www.thedailybeast.com/newsweek/2011/10/16/robert-bork-on-romney-obama-and-biden.html)** > > The man known for Nixon’s "Saturday Night Massacre" tells Lloyd Grove why he is Romney’s legal adviser. ---
**Author:** ![BobLibDem](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/boblibdem/32/3149_2.png) [@BobLibDem](https://boards.straightdope.com/u/BobLibDem)\ **Post date:** [March 25, 2022, 5:25pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/2 "2022-03-25T17:25:08Z")
The year is 2525. Man is still alive. Woman has survived. The Mars colony is flourishing. Fusion power has enabled mankind to fight climate change. War is no longer even a thought in anyone’s mind. And Republicans are still bitching about Robert Bork’s rejection. Yes the guy deserved it. If for nothing else, for being Nixon’s stooge in the Saturday Night Massacre. If not for that, for his right wing extremism. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 25, 2022, 5:33pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/3 "2022-03-25T17:33:39Z")
Bork was nuanced and could not survive in a (modern for 1987) world of 30 second sound bites. He was a professor that required law review articles to flesh out his positions. The one that got him in trouble was “Neutral Principles” (ETA: better link: ["Neutral Principles and Some First Amendment Problems" by Robert H. Bork](https://www.repository.law.indiana.edu/ilj/vol47/iss1/1/)) The article speaks for itself, but he is saying that he disagrees with anti-contraception laws and racially restrictive covenants. But he thinks that a judge hitting the softballs out of the park opens up more problems than it solves. It is very intellectual and should be encouraged. The more important point is that Scalia, Thomas, Kavanaugh, Barrett, and Gorsuch likely agree with every word Bork said, but the lesson is to be silent about it. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 25, 2022, 5:36pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/4 "2022-03-25T17:36:28Z")
> [@Moriarty](#): > > While that might not be saying much, it is often cited as the start of a very dirty trend in modern politics to make the Supreme Court selection process highly polarizing That’s the way Republicans want to tell the story. They want to claim that Bork was the first time any Supreme Court nominee was rejected for partisan reasons. And the Democrats started it. This ignores the way Republicans rejected Abe Fortas’ nomination for Chief Justice in 1968. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 25, 2022, 5:38pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/5 "2022-03-25T17:38:35Z")
> [@Little\_Nemo](#): > > This ignores the way Republicans rejected Abe Fortas’ nomination for Chief Justice in 1968. The difference is, admittedly, there were no televised hearings in 1968. And that Bork was probably the smartest lawyer in the whole country at the time. Brilliant guy. And, the (then) modern media distorted his positions by claiming that a Supreme Court under a Justice Bork wouldn’t allow you to buy birth control pills or condoms, an extremely dishonest and unfair attack. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [March 25, 2022, 5:40pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/6 "2022-03-25T17:40:54Z")
Just to make sure this is perfectly clear, it wasn’t just Democrats that rejected Bork. First, two Democrats voted for him, and six Republicans voted against him. So, it was a bipartisan rejection. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 25, 2022, 5:42pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/7 "2022-03-25T17:42:21Z")
Yes, correct. But that was back when the parties were not so ideologically divided. Jeffords and Spector actually became Democrats. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [March 25, 2022, 5:46pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/8 "2022-03-25T17:46:11Z")
I’m not sure what you’re point is. This is always portrayed as a Democrats vs. Republicans thing, but it was actually a bi-partisan thing. The Republicans talk about revenge for what Dems did to Bork, but they should look in the mirror. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 25, 2022, 5:48pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/9 "2022-03-25T17:48:29Z")
“Bi-partisan” meant something different in 1987. It was the Democrats that rejected him 52-2 and Republicans supported him 40-6. [Robert Bork Supreme Court nomination - Wikipedia](https://en.wikipedia.org/wiki/Robert_Bork_Supreme_Court_nomination#Full_Senate) How you can say it was Republicans that torpedoed him is a uniquely 21st century thing. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [March 25, 2022, 6:00pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/10 "2022-03-25T18:00:04Z")
> [@UltraVires](#): > > How you can say it was Republicans that torpedoed him is a uniquely 21st century thing. I didn’t say that. I said it was a bi-partisan thing. Here: > [@RitterSport](#): > > This is always portrayed as a Democrats vs. Republicans thing, but it was actually a bi-partisan thing. What did bi-partisan mean in 1987? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 25, 2022, 6:01pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/11 "2022-03-25T18:01:56Z")
I have no interest in engaging in this nit-pickery. Bottom line is that if not for the strong Democratic opposition, Bork is confirmed. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [March 25, 2022, 6:05pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/12 "2022-03-25T18:05:38Z")
> [@UltraVires](#): > > I have no interest in engaging in this nit-pickery. **Bottom line is that if not for the strong Democratic opposition, Bork is confirmed.** - You say that like it’s a bad thing. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [March 25, 2022, 6:06pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/13 "2022-03-25T18:06:30Z")
That’s the debate in this thread. I have stated my position that it was. ---
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [March 25, 2022, 6:20pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/14 "2022-03-25T18:20:13Z")
> [@Moriarty](#): > > While that might not be saying much, it is often cited as the start of a very dirty trend in modern politics to make the Supreme Court selection process highly polarizing, and taught the new generation of nominees to be as bland as possible, even going so far as to pretend that they’d never considered Roe v Wade. The Senate hearings for Supreme Court nominees are essentially a job interview, albeit one performed on the public stage. Any nominee coming in to the hearing with the believe that their past actions, behaviors, and political views are not subject to consideration is ill-prepared or terminally naive. The belief that the nomination process itself should be apolitical is belied by the fact that it is run by a political body (albeit one that is assumed to be less innately partisan than the House of Representatives). There persists the believe that Supreme Court justices are expected to not let political views or changes in social context influence their opinions as if their decisions carry the weight of papal infallibility, which is ridiculous on the face of claims of ‘originalist doctrine’. Justices are expected to interpret law in context to the Constitution as the governing standard rather than create novel interpretations _ex officio_, but quite obvious the political tenor of decisions has changed radically over the last two hundred and thirty-odd years, from support of human slavery and institutional segregation to support for civil and voting rights (just to pick one area in which jurisprudence has changed radically). Asking what a nominee’s positions are on various political issues is entirely in the bounds of assessing whether the nominee is suitable for the current social mores and philosophy. As for Bork…he got his Senate hearing despite multiple controversies, which is more than Merrick Garland can say, since his was short-stopped on such a transparently partisan basis. So did Kavanaugh despite [reasons to question his ethics](https://youtu.be/Tsm1GPnlqmU) beyond the multiple allegations of his adolescent proclivities for sexual assault. Stranger ---
**Author:** ![What\_Exit](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/what_exit/32/10652_2.png) [@What\_Exit](https://boards.straightdope.com/u/What_Exit)\ **Post date:** [March 25, 2022, 6:22pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/15 "2022-03-25T18:22:20Z")
**Modnote** : I’m going to interrupt to remind everyone to keep this about **Bork**. No other nominees. There are many other places to debate about others. ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [March 25, 2022, 6:26pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/16 "2022-03-25T18:26:23Z")
> [@UltraVires](#): > > It was the Democrats that rejected him 52-2 and Republicans supported him 40-6. Votes are funny things. If you know something is guaranteed to fail (or pass), you are free to “vote your conscience”. I can imagine that some or those Republican votes would have been different if there was a chance to confirm Bork. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [March 25, 2022, 7:48pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/17 "2022-03-25T19:48:10Z")
Tell me if I have this right, he argued that “equal protection under the law” didn’t apply at all at the federal level, and didn’t apply to women? This is a person we want deciding constitutional cases? Really? Seriously? A person who says out loud that it’s perfectly legal for the government to deny people equal protection? I suppose I shouldn’t be shocked that Republicans supported him 40-6. ---
**Author:** ![Stranger\_On\_A\_Train](https://avatars.discourse-cdn.com/v4/letter/s/13edae/32.png) [@Stranger\_On\_A\_Train](https://boards.straightdope.com/u/Stranger_On_A_Train)\ **Post date:** [March 25, 2022, 7:57pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/18 "2022-03-25T19:57:45Z")
> [@Cheesesteak](#): > > Tell me if I have this right, he argued that “equal protection under the law” didn’t apply at all at the federal level, and didn’t apply to women? > > This is a person we want deciding constitutional cases? Really? Seriously? A person who says out loud that it’s perfectly legal for the government to deny people equal protection? Technically, that is a very ‘originalist’ position from the era when non-Europeans were ‘savages’ suitable only for eradication or as chattel, and women and non-land owners don’t have a right to the electoral franchise. If your perspective is that the Constitution should be strictly interpreted per the consensus of the authors, then it is certainly consistent. It is not, I think, the kind of interpretation that would be accepted today by other than a small minority of people today across a wide array of political creeds, hence why Bork faced such harsh questioning, a.k.a. “Borking”. Lesson: if you don’t want to face pointed questions about your controversial political positions, suspect ethics, and questionable behavior, don’t submit yourself for a position requiring a Senate nomination. Stranger ---
**Author:** ![Moriarty](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/moriarty/32/49_2.png) [@Moriarty](https://boards.straightdope.com/u/Moriarty)\ **Post date:** [March 25, 2022, 8:38pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/19 "2022-03-25T20:38:39Z")
> [@Cheesesteak](#): > > Tell me if I have this right, he argued that “equal protection under the law” didn’t apply at all at the federal level, and didn’t apply to women? Originalism as a legal philosophy is intellectually absurd (you can’t possibly determine the original intent of words written by a committee - the founders disagreed strongly amongst themselves about the meaning of what they wrote), but the practical effect is to construe rights as narrowly as possible. So I think Bork’s position was that the 14th amendment only applied to the civil rights of the freed slaves (which would be wrong, as it was written to address “persons”, whereas contemporary amendments like the 15th used terminology to refer to freed slaves), because that’s what was intended by those who wrote it. And extending it to other oppressed, marginalized, or excluded groups is “judicial activism”. (Note that this is my general understanding of originalist criticism of judicial overreach, not some researched opinion of his writings) ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [March 25, 2022, 9:20pm UTC](https://boards.straightdope.com/t/should-bork-have-been-borked/961709/20 "2022-03-25T21:20:51Z")
> [@UltraVires](#): > > The difference is, admittedly, there were no televised hearings in 1968. And that Bork was probably the smartest lawyer in the whole country at the time. Brilliant guy. This is the first time I’ve ever heard anyone saying Bork was an exemplary lawyer. I’m not saying he was a bad lawyer or a bad judge. I’ve always seen him as a qualified lawyer and judge; somebody who had hundreds of others at the same level he was at. I think the characteristic that made Bork stand out was that he was a loyalist. If you were his boss, he would do what you wanted done. Which is arguably a good quality in a lawyer but not so much in a judge. [Next page](https://boards.straightdope.com/t/should-bork-have-been-borked/961709.md?page=2)