Sheila Kennedy – Page 917 – A jaundiced look at the world we live in.

More on Bork

In a recent post, I made the case that Romney’s choice of Robert Bork as his legal/courts advisor should disqualify him from the Presidency.

I subsequently ran across a more in-depth discussion of Bork, borrowing liberally from his own writings.

This extended essay is well worth reading in its entirety, but let me whet your appetite with my “favorite” Bork quote: “No activity that society thinks immoral is victimless. Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.”

The U.S. Constitution was based upon the Enlightenment belief in personal autonomy; the libertarian principle that humans have the right to pursue their own ends–the right to “do their own thing”–so long as they respect the equal right of others and do not cause harm to the person or property of a non-consenting other.

This is sometimes called “the harm principle,” and it limits the zone of freedom individuals enjoy. If something I am doing harms you, the government is justified in intervening. So, for example, free people can choose to smoke, even though it may be bad for them, but when substantial scientific evidence confirms the harm done to others by passive smoke, government can constitutionally prohibit smoking in public places. People of good will can and do debate whether a particular activity is harmful, of course, but in our system, if your personal behaviors don’t affect anyone else, the government is supposed to butt out.

In Bork’s world, however, simple awareness that someone is doing something of which you disapprove constitutes a harm.

In Bork’s world, if “society” believes that a behavior–contraceptive use, sex between unmarried adults, homosexual sex, masturbation, smoking, whatever–is immoral, that disapproval constitutes a harm sufficient to justify outlawing that activity.

Freedom, in Bork’s cramped vision of that word, is freedom to do the “right” thing–as defined by Robert Bork and his ilk. It is hard to imagine a more unAmerican understanding of our legal system.

Bork actually makes Jay Sekelow–Pat Robertson’s lawyer, and the other Romney legal advisor–look moderate.

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OMGs of the Day…

Sometimes, it’s really hard to choose the most appalling news of the day.

I could begin with the continued embarrassment that is Dick Lugar’s campaign.

Yesterday, Lugar was one of 31 (male) Republican Senators who voted against reauthorization of the Violence Against Women Act; evidently, “true Indiana conservatives” consider laws against wife-beating an infringement of their liberty. Today, we learn that Lugar has invited aging crooner Pat Boone to campaign for him. Whatever his merits as a singer, Boone is primarily known today as a right-wing crank. He is a creationist. He has compared gay activists to terrorists. He is a “birther” who insists that Obama was not born in the U.S. and is not a Christian. He is exactly the sort of person the Dick Lugar I once admired would have avoided like the plague.

Granted, Mourdock is a toad. But watching Lugar frantically shed what is left of his integrity in an effort to appeal to the baseness of the GOP base has been endlessly disheartening.

Lugar is hardly the only public figure who has allowed his ego to trump his judgment. Today’s news also focuses on Eugene White, who seems equally intent upon disgracing himself.

It seems that White is doing everything he can to torpedo the impending State takeover of several IPS schools. He’s refusing to turn over student information, spreading misinformation to IPS parents, removing equipment from the targeted schools and otherwise making the transition as difficult as possible–all without any apparent regard for the children whose education is supposed to be his first concern.

I am no fan of State Superintendent Tony Bennett, who clearly has an ego problem of his own, and I harbor grave doubts about the wisdom of the state takeover. But White’s response is infantile and destructive–a description which, come to think of it, has characterized his entire tenure at IPS. A school board that took its responsibilities to children seriously would have fired him long before this.

Whatever happened to public servants who wanted to–you know–serve the public?

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Nimble We Aren’t

There is a report in this morning’s Indianapolis Star—buried between breathless reports about the Colt’s new quarterback, true, but an actual story with real news in it–about efforts to address Indianapolis’ longstanding sewer problem.

When it rains, tons of raw sewage are dumped into our water supply. Citizens, which bought the water and sewer utilities last year, is beginning construction of massive tunnels beneath the city to divert that sewage and correct the problem–and not so incidentally, fulfill the City’s obligations under a 2006 consent decree with the EPA.

I was delighted to read that we are finally going to address this problem. But I couldn’t help marveling over the amount of time it has taken.

I was in City Hall from 1977-80. Indianapolis’ sewer problems were already a regular topic of conversation at cabinet meetings. The City had been in discussion with the (then new) EPA since the Lugar Administration. (I wouldnt say there was a lot of resistance to demands that the problems be fixed, but an engineer with DPW reportedly protested that it would be cheaper to clean White River than comply with federal demands.)

It took from 1975 to 2006 for Indianapolis to agree to stop dumping raw sewage into our drinking water. It took another six years to begin remediation. Of course, City leaders have been trying for almost that long to address our need for decent public transportation, and we’re nowhere close to getting that job done.

If it took us 37 years to begin fixing a problem that everyone acknowledged we had, a problem we knew how to solve–how many years do you suppose it will it take to fix public education?

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An Interesting Exchange

Like many other civil libertarians, I have been deeply disappointed by President Obama’s willingness to continue many of the security practices of the Bush Administration. It is especially galling because–unlike Bush–Obama quite obviously knows what the Constitution requires, and has nevertheless been willing to engage in surveillance and other practices which most civil libertarians believe cross the line.President Obama gets blamed for many things he clearly doesn’t do, but in this area, disappointment in his performance is justifiable.

Because I have been pretty critical of Administration policy in this area, I was interested in the following observation posted on the Law and Courts Listserv, a scholarly exchange to which I subscribe.

In response to a post suggesting an equivalency between the policies of the two administrations, Professor Alexander wrote:

“Eugene says the Bush antiterrorism policy “is quite similar to the Obama Administration’s antiterrorism policy.”

I like many others have been deeply disappointed in aspects of the Obama Administration’s policy on detainees and counterterrorism, as well as the efforts by Congress and judges on the D.C. Circuit to force the administration to continue Bush policies. But Eugene’s statement is simply not the case. Contrary to the Bush administration:

* Obama has withdrawn from combat operations in Iraq and plans to

withdraw from Afghanistan in 2014;

* Obama found and killed bin Laden;

* on his first day in office Obama

1) revoked all the Bush administration OLC memos, executive

orders, and directives on interrogations;

2) ordered an end to torture, and cruel, inhumane, or

degrading treatment, and compliance with the Army field manual

(regardless of whether one thinks that is the end-all of good

interrogation practice);

3) ordered all CIA prisons worldwide to be closed;

4) ordered the closure of Guantanamo — it is decidedly not

his fault that the facility remains open;

5) ordered that the Geneva Conventions are the “minimum

baseline” for treatment of any individuals detained in “any armed conflict”;

6) ordered that the International Red Cross be given access

to all detainees;

* Obama ordered the trial in Art III court of KSM and the other

captured 9/11 plotters — again, not his fault that they must be tried

in military commissions;

* in March 2011 Obama issued an executive order directing that the

government comply with Art 75 of Additional Protocol I to the Geneva

Conventions “out of a sense of legal obligation” — thereby

acknowledging the binding nature of international law in connection with

the detention of suspected terrorists — and urged Congress to ratify

Additional Protocol II;

* the Obama administration revamped the military commission

procedures so that — although not as good as Art III courts — they are

much improved over the Bush versions;

* in particular, evidence obtained by cruel, inhuman, or degrading

treatment is barred;

* it appears that DOJ and DOD are pursuing and concluding military

commission plea bargains so that evidence in MC trials (such as the KSM

trial) will conform to Art III standards;

* the President and Attorney General have repeatedly declared that

waterboarding is torture and is illegal (in stark contrast to Bush,

Cheney, and Yoo, who have gleefully affirmed torture as good policy); and

* no prisoners have been transferred to Guantanamo and the

administration has repeatedly stated that none will be.”

Clearly, Professor Alexander has been following these matters far more closely than I have.

Now, I’ll be the first to acknowledge that being better than the Bush Administration on civil liberties is hardly a “get out of jail free” card. But this list did make me feel better.

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Romney Sells What’s Left of His Soul

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.

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