If there is any lingering doubt that Mitt Romney has sold what passes for his soul to the extreme right, his appointment of Robert Bork as his “legal advisor” should remove it.
I remember when Bork’s nomination to the Supreme Court was rejected by the Senate in a vote that included several Republicans. I was a pretty partisan Republican at the time, but even so, I found his nomination both mystifying and appalling. It’s fashionable among people who are unfamiliar with Bork’s writings and positions to bemoan the “nasty politics” that denied him a seat on the high court, but that sanitized version of history is simply inaccurate. While politics undoubtedly played a part, the reason Bork was rejected was that his views were far, far out of the legal mainstream. His diatribes have–if anything–gotten more extreme since.
As law professor Jamin Raskin reminded readers in a recent post to the American Constitution Society blog,
- Bork condemned as “lawless” and “a new low” the Supreme Court’s decision in Roper v. Simmons, which banned state execution of juveniles — a practice that he would allow despite the fact that no other country in the world sanctions it. Justice Kennedy wrote the majority opinion.
- Bork rejects the Supreme Court’s decision in Planned Parenthood v. Casey upholding a woman’s right to choose an abortion. He is adamant that Roe v. Wade be overturned and states be allowed the power to prosecute women and doctors who violate criminal abortion laws. As Bork states, “Roe, as the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century, should be overturned. The Court’s integrity requires that.” (See The Tempting of America)
- He attacked the Supreme Court for its 7-1 decision in U.S. v. Virginia barring the state-funded Virginia Military Institute from discriminating against women. He argued that the “feminized Court” had reached its conclusion based on “sterile feminist logic” and rejected the mainstream view that sex-based classifications by government trigger heightened scrutiny.
- Bork deplores the Court’s decision in Lawrence v. Texas striking down state laws that criminalize gay sex and has advocated amending the Constitution to declare that marriage is between “one man and one woman.” (He even championed for a while a constitutional amendment permitting a simple majority of Congress to overturn the Supreme Court’s constitutional holdings, but appears to be backing away from this position.)
- Bork lambasted the Court’s decision to uphold affirmative action as constitutional, despite the consensus of most universities, and even the United States armed services, that such programs are needed to counter historical discrimination and promote diversity in these institutions.
- He has an embarrassing record on voting rights, vehemently opposing the fundamental constitutional principle of “one person, one vote” and defending the constitutionality of the poll tax and literacy test in state elections.
I read Bork’s “Slouching Toward Gomorra” when it first came out; in it, Bork essentially took the position that he and other members of an “enlightened” elite should decide what other (lesser) Americans could read. Despite the effort of many on the Right to rehabilitate Bork’s image, the man’s own works testify to his profoundly anti-democratic views. If there is any doubt of the utterly radical nature of Robert Bork’s positions, the evidence is in his own articles and books, his own words. It is unnecessary to consult secondary resources.
The obvious question is: Why on earth would Mitt Romney choose Robert Bork–as extreme and polarizing a figure as can be found–to be his legal adviser, the person he would listen to when choosing Supreme Court nominees, the person he would consult about the constitutionality of policy proposals?
Why, when he has secured the nomination, would he embrace someone beloved only by the farthest fringes of the lunatic Right? If it’s time to shake up the Etch-A-Sketch and try to look reasonably moderate, this is a seemingly inexplicable choice.
I can think of only two possible answers to that question: either Romney really is an extremist who only played a moderate in Massachusetts; or he is making a final, desperate Faustian bargain in an effort to earn the trust of today’s reactionary GOP base.
Either explanation makes him a fraud. Bork makes him a dangerous fraud.