# Should Robert Bork have sat on the Supreme Court? **URL:** \ **Category:** Great Debates\ **Created:** [May 9, 2010, 2:05am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778 "2010-05-09T02:05:57Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 15, 2010, 2:43am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/41 "2010-05-15T02:43:51Z")
Nah. It would’ve been too soon for Bork to have made much (if any) difference, and no one’s ever lost an election over a Supreme Court appointment, anyway. Even the stinkers haven’t been a factor in any President later losing an election that I can think of. ---
**Author:** ![KarlGauss](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/karlgauss/32/3713_2.png) [@KarlGauss](https://boards.straightdope.com/u/KarlGauss)\ **Post date:** [May 15, 2010, 5:42pm UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/42 "2010-05-15T17:42:40Z")
> [@Richard\_Parker](#): > > . . . Bork believes that the First Amendment only protects speech that is explicitly political, with no protection for scientific or literary speech. In his view, the government can censor, say, evolution textbooks . . . I’m not trying to be argumentative, nor do I want to hijack this interesting thread. But I’m very curious about your assertion that Bork would restrict ‘free speech’ to only that which is political. Is there a cite for that? (and, one that shows unequivocally that what you claim about Bork in this respect is true) Thanks. ---
**Author:** ![yorick73](https://avatars.discourse-cdn.com/v4/letter/y/b5a626/32.png) [@yorick73](https://boards.straightdope.com/u/yorick73)\ **Post date:** [May 15, 2010, 7:05pm UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/43 "2010-05-15T19:05:23Z")
> [@ElvisL1ves](#): > > Please. The Court is political by its very purpose and function. There’s no point arguing that it shouldn’t be, but that doesn’t stop some from trying anyway. The purpose of the court is NOT to be political. That’s the whole point of having lifetime appointments. Although individuals will have political viewpoints, in theory these should not affect how judges decide cases. You can think a political idea is a great idea while at the same time finding it unconstitutional. A political court will try to bend the constitution to allow ideas that are not constitutional just because they think it is good policy. Take Roe v Wade. Almost everyone agrees it was tortured logic even if you agree with the outcome. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [May 16, 2010, 1:03am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/44 "2010-05-16T01:03:55Z")
> [@KarlGauss](#): > > I’m not trying to be argumentative, nor do I want to hijack this interesting thread. But I’m very curious about your assertion that Bork would restrict ‘free speech’ to only that which is political. Is there a cite for that? (and, one that shows unequivocally that what you claim about Bork in this respect is true) Thanks. He explicitly said so in his 1971 article, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971). Most of the article is on Google Books, if you’d like to verify for yourself. He moderated his public position somewhat over the years. [Time](http://www.time.com/time/magazine/article/0,9171,965588-2,00.html) magazine had this to say at the time of his Supreme Court hearings: > [@](#): > > Though Bork testified that he had altered [his free speech] views some time ago, last week marked the first public retreat from his stands. . . . His capitulation was all the more surprising since only two years ago, in an interview with Conservative Digest, Bork said his First Amendment philosophy was “expressed pretty much in that 1971 Indiana Law Journal piece.” ---
**Author:** ![Qin\_Shi\_Huangdi](https://avatars.discourse-cdn.com/v4/letter/q/f04885/32.png) [@Qin\_Shi\_Huangdi](https://boards.straightdope.com/u/Qin_Shi_Huangdi)\ **Post date:** [May 22, 2010, 3:52am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/45 "2010-05-22T03:52:46Z")
> [@Little\_Nemo](#): > > An extreme position would be the government deciding when people have abortions - it doesn’t matter if the government is prohibiting abortions or making them mandatory. A moderate position would be letting the states decide on abortion while the pro-life position would be nationally banning abortion with certain exceptions. > [@Cyberhwk](#): > > You think requiring a woman be penetrated vaginally with an ultrasound probe is “a more moderate approach?” ([A source you probably trust](http://www.foxnews.com/politics/2010/04/19/oklahoma-force-women-vaginal-probe-abortion/)) That’s only if regular ultrasound is unworkable. ---
**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:** [May 27, 2010, 4:58pm UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/46 "2010-05-27T16:58:06Z")
> [@Curtis LeMay](#): > > A moderate position would be letting the states decide on abortion while the pro-life position would be nationally banning abortion with certain exceptions. Would a moderate position on civil rights be allowing each state to decide if it wants to allow segregation? ---
**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:** [May 27, 2010, 9:26pm UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/47 "2010-05-27T21:26:04Z")
> [@](#): > > A moderate position would be letting the states decide on abortion while the pro-life position would be nationally banning abortion with certain exceptions. If you feel the government has a right to take the decisions about abortions away from the people involved, do you then agree in principle that the government could make some abortions mandatory? If the government can tell one woman she can’t have an abortion, can’t it also tell another woman she can’t have a baby? ---
**Author:** ![Ace309](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ace309/32/1050_2.png) [@Ace309](https://boards.straightdope.com/u/Ace309)\ **Post date:** [May 28, 2010, 7:35am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/48 "2010-05-28T07:35:58Z")
> [@Richard\_Parker](#): > > Even if I’m the Dean of Yale Law School, if I say the Third Amendment gives me the right to punch people named Jane in the face, you should reject me. To be fair, sometimes Janes deserved it. What was the basis of the ABA’s “Not Qualified” ratings? I agree with **John Mace** that a SCOTUS appointment is the President’s prerogative and should generally be confirmed, so the reasoning for those ratings would be highly relevant to my judgment. For those of you more up on your SCOTUS history, is it true that Bork’s confirmation hearings were the first to be similar to the current, more cutthroat hearings, as opposed to something less adversarial? If so, then the effect is probably much stronger than just how Bork would have voted from the bench. ---
**Author:** ![Measure\_for\_Measure](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/measure_for_measure/32/557_2.png) [@Measure\_for\_Measure](https://boards.straightdope.com/u/Measure_for_Measure)\ **Post date:** [May 28, 2010, 8:15am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/49 "2010-05-28T08:15:54Z")
I seriously doubt whether Ted Kennedy’s tirade had any effect on the outcome of the Senatorial vote. Bork was thumbed down because of swing votes like Howell Heflin of Alabama. In addition to his eyebrow-raising comments on staris decisis, Bork couldn’t bring himself to provide a full throated defense of Brown vs. Board of Ed. Southern Democrats were pretty conservative in those days, but they nonetheless very much wanted to keep certain resolved racial disputes off the table and safely in the past. At any rate, Thomas, Scalia and Alito all survived confirmation hearings. The far-right has plenty of representation in that institution, whose most allegedly liberal members over the past several decades (eg Brennan, Warren) were all appointed by Republican Presidents (Marshall notwithstanding). ---
**Author:** ![Ace309](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/ace309/32/1050_2.png) [@Ace309](https://boards.straightdope.com/u/Ace309)\ **Post date:** [May 28, 2010, 2:46pm UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/50 "2010-05-28T14:46:49Z")
Wouldn’t there be an effect on nominations, though? The impression that I got was that Roberts was selected in large part because he was both qualified and noncontroversial. Is that a recent consideration, or has it more or less always been the case? ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [May 28, 2010, 3:19pm UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/51 "2010-05-28T15:19:45Z")
The political tides ebb and flow, but generally speaking yes, I’d say it’s a more recent consideration. See Jeffrey Toobin’s excellent _The Nine_ for a description of how the GHWB, Clinton and GWB White Houses handled the nomination process, and what factors went into their thinking as to who to put on the Supreme Court. History teaches us that confirmation battles tend to break out when the nominee (a) is not as qualified as the President says he or she is, (b) is noticeably farther to one end of the ideological spectrum than the justice being replaced, or © has some baggage with which the Senate is uncomfortable. A wise President will appoint someone who is not too old, of widely-recognized experience and integrity, of an ideology consistent with the President’s but not too far out there, after consulting privately with the top Senate Judiciary Committee members for their feedback as to the prospective nominees. If all of that is done, there should be no problems. If the President wants a fight, though, he can always find one. ---
**Author:** ![Qin\_Shi\_Huangdi](https://avatars.discourse-cdn.com/v4/letter/q/f04885/32.png) [@Qin\_Shi\_Huangdi](https://boards.straightdope.com/u/Qin_Shi_Huangdi)\ **Post date:** [June 1, 2010, 12:53am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/52 "2010-06-01T00:53:37Z")
> [@Little\_Nemo](#): > > If you feel the government has a right to take the decisions about abortions away from the people involved, do you then agree in principle that the government could make some abortions mandatory? If the government can tell one woman she can’t have an abortion, can’t it also tell another woman she can’t have a baby? No, as it is government sanctioned eugenics contrary to the Tenth Amendment. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [June 1, 2010, 2:16am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/53 "2010-06-01T02:16:45Z")
> [@Curtis LeMay](#): > > No, as it is government sanctioned eugenics contrary to the Tenth Amendment. I don’t think that follows. I could see a not-too-farfetched form of eugenics that decided it was in society’s best interests for all women to have all children of which they were physically capable, maybe in a country whose population had plummeted after war or other calamity, or which had relatively few fertile women. ---
**Author:** ![Qin\_Shi\_Huangdi](https://avatars.discourse-cdn.com/v4/letter/q/f04885/32.png) [@Qin\_Shi\_Huangdi](https://boards.straightdope.com/u/Qin_Shi_Huangdi)\ **Post date:** [June 1, 2010, 2:45am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/54 "2010-06-01T02:45:34Z")
> [@Elendil\_s\_Heir](#): > > I don’t think that follows. I could see a not-too-farfetched form of eugenics that decided it was in society’s best interests for all women to have all children of which they were physically capable, maybe in a country whose population had plummeted after war or other calamity, or which had relatively few fertile women. That would be in an extreme scenario where presumably the US government has collapsed or the Constitution is suspended. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [June 1, 2010, 3:32am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/55 "2010-06-01T03:32:12Z")
> [@Curtis LeMay](#): > > That would be in an extreme scenario where presumably the US government has collapsed or the Constitution is suspended. Perhaps, but if your objection to **Little Nemo** ’s hypothetical is that it’s eugenics, then one form ought to be as repugnant as another. What matters is the government’s exercise of authority over childbearing. What’s sauce for the goose is sauce for the gander, isn’t it? ---
**Author:** ![Qin\_Shi\_Huangdi](https://avatars.discourse-cdn.com/v4/letter/q/f04885/32.png) [@Qin\_Shi\_Huangdi](https://boards.straightdope.com/u/Qin_Shi_Huangdi)\ **Post date:** [June 2, 2010, 1:50am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/56 "2010-06-02T01:50:48Z")
> [@Elendil\_s\_Heir](#): > > Perhaps, but if your objection to **Little Nemo** ’s hypothetical is that it’s eugenics, then one form ought to be as repugnant as another. What matters is the government’s exercise of authority over childbearing. What’s sauce for the goose is sauce for the gander, isn’t it? To give an analogy government has the power to prevent the murder of people but it can’t murder people themselves. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 2, 2010, 2:55am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/57 "2010-06-02T02:55:07Z")
Good news for death row inmates, I guess. ---
**Author:** ![TriPolar](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/tripolar/32/3008_2.png) [@TriPolar](https://boards.straightdope.com/u/TriPolar)\ **Post date:** [June 2, 2010, 4:10am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/58 "2010-06-02T04:10:21Z")
> [@Little\_Nemo](#): > > If you feel the government has a right to take the decisions about abortions away from the people involved, do you then agree in principle that the government could make some abortions mandatory? If the government can tell one woman she can’t have an abortion, can’t it also tell another woman she can’t have a baby? Can this situation occur now? If a pregnant woman is injured in a car accident, and unable to speak for herself, and she will die if she does not have an abortion, and so will her pre-natal child, and there is no one of standing to express her wishes, would the government step in at that point? Could they order doctors to perform an abortion? ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [June 2, 2010, 5:31am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/59 "2010-06-02T05:31:59Z")
> [@Ace309](#): > > … For those of you more up on your SCOTUS history, is it true that Bork’s confirmation hearings were the first to be similar to the current, more cutthroat hearings, as opposed to something less adversarial? … Rehnquist’s appointment to the CJ position a year earlier got heated, > [@](#): > > … During confirmation hearings, Senator Edward Kennedy challenged Rehnquist on his unwitting ownership of property that had a restrictive covenant against sale to Jews (such covenants are unenforceable under Shelley v. Kraemer). Despite this and other controversies, including a concern over his membership in the Alfalfa Club (which at the time did not allow women to join) …[RIGHT][CITE](http://en.wikipedia.org/wiki/William_Rehnquist#Chief_Justice)[/RIGHT] IMHO it wasn’t that something changed during the Bork conformation hearings, it was that Bork was a lightning rod. Add; who Bork was replacing (Lewis Powell, a moderate, often the swing vote in close decisions), his controversial writings and positions on the CotUS, his attitude towards the job (I forget the exact phrase but something like “an intellectual feast”\*), and probably most significantly his role in the _Saturday Night Massacre_ and you get a nominee that’ll be lucky to get out of the Judiciary Committee let alone get confirmed. There was no way the guy that fired Archibald Cox and helped Nixon try to sabotage the Watergate investigation was ever gonna sit on the SCotUS. CMC fnord! \*Which sounded worse than what he really meant, but there was/is an expectation that SCotUS nominees will take the position that the job is one of great and difficult decisions that they’ll agonize over before they finally come to a decision. Every case has the potential of being _Dred Scott_ or _Brown v Board_. To my ear it sounded like Bork just couldn’t wait to start overturning as many of the “Warren Court” precedents as the court would hear. ---
**Author:** ![kaylasdad99](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/kaylasdad99/32/3398_2.png) [@kaylasdad99](https://boards.straightdope.com/u/kaylasdad99)\ **Post date:** [June 2, 2010, 5:45am UTC](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778/60 "2010-06-02T05:45:59Z")
> [@Little\_Nemo](#): > > The United States does have a moderate position on abortion. It lets people decide for themselves. Those who want abortions can have them. Those that don’t want abortions, don’t have to have them. > > An extreme position would be the government deciding when people have abortions - it doesn’t matter if the government is prohibiting abortions or making them mandatory. > [@Curtis LeMay](#): > > A moderate position would be letting the states decide on abortion while the pro-life position would be nationally banning abortion with certain exceptions. Weird. **Little Nemo** brings up a distinction between “moderate” and “extreme,” and you want to respond by drawing a distinction between “moderate” and “pro-life.” I think I’m right in supposing that you don’t want to get mired into taking a position that your favored outcome is extremist, so let’s go with the notion that you thought you could get away with conflating two different senses of the term “moderate position” and drift from one toward the other when asked to defend as “not extreme” something you had called “moderate.” Fact is, **Curtis** , that **Little Nemo** is right. The moderate position is the one that leaves the individual decision up to the individual (wrt legal activities undertaken by autonomous adults). All positions that permit outside persons, acting through the power of the government, to usurp that autonomy, are, by definition, extreme. That some positions are batshit insane in their extremeness does not render the less batshit insane positions moderate. [Previous page](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778.md?page=2) [Next page](https://boards.straightdope.com/t/should-robert-bork-have-sat-on-the-supreme-court/538778.md?page=4)