Dispatches from the Creation Wars

Seth Cooper Likes Bork

Posted by Ed Brayton on November 18, 2004
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Seth Cooper, the Discovery Institute counsel I mentioned a couple days ago, has now written, rather surprisingly perhaps, that he supports Arlen Specter for the chairmanship of the Judiciary Committee. But in the course of his rather lukewarm endorsement, he makes this statement:

In fact, I find Sen. Specter’s treatment of Judge Robert Bork in his 1987 confirmation hearings to be nothing short of shameful. Sen. Specter had recently made reference to his actions in that painful episode. It was a mistake for Sen. Specter to do that. He should have expected the much-deserved backlash for it.

It always baffles me to see even SoCons like Cooper, especially those with legal training, come to the defense of Bork. It makes me wonder if they’ve ever actually read any of his legal writings, which are filled with outrageous and dangerous opinions on Constitutional law. This is the man who in 1971 wrote, “Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic.” No Consitutional protection for literary or scientific speech whatsoever? I’m sorry, that opinion is so far off the absurdity scale that the mere uttering of it is prima facie evidence of insanity. And it certainly ought to disqualify one from a seat on the Supreme Court. Sorry, Mr. Cooper, Arlen Specter was quite right to oppose Bork’s nomination and he should feel pride for having kept this authoritarian off the court, not shame.

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Comments

  1. #1 Guitar Eddie
    November 18, 2004

    “Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic.”

    What I’ve never understood is why Bork feels that free speech should be so narrowly defined. What the hell is he afraid of? Why should society be able to control the flow of ideas in such a manner?

  2. #2 raj
    November 19, 2004

    Bork is an idiot. If the 1st amendment were to only be limited to political speech, the amendment could easily have been written to so indicate. The fact that it wasn’t written to so indicate, suggests that Bork’s opinion holds no water.

    BTW, that’s substantially the same argument that I use when someone asserts that the “establishment clause” of the 1st amendment was intended only to prevent the establishment by the federal government of a national church. If that was the intent, the amendment could have been written to make that clear. It clearly wasn’t written that way, so the protection afforded by the amendment is clearly broader than had been asserted.

  3. #3 Ed Brayton
    November 19, 2004

    Bork is an idiot. If the 1st amendment were to only be limited to political speech, the amendment could easily have been written to so indicate. The fact that it wasn’t written to so indicate, suggests that Bork’s opinion holds no water.

    The other problem with this argument is that it is so easy to circumvent – you simply add a political statement to anything you wish to publish. If only political speech is protected and there is a law against, say, erotic literature, one only has to append a political statement against such laws to the end of one’s erotic book – voila, it’s political speech.

    BTW, that’s substantially the same argument that I use when someone asserts that the “establishment clause” of the 1st amendment was intended only to prevent the establishment by the federal government of a national church. If that was the intent, the amendment could have been written to make that clear. It clearly wasn’t written that way, so the protection afforded by the amendment is clearly broader than had been asserted.

    In the case of the establishment clause, one can go one step further than that and point to specific wordings of the first amendment that would have explicitly banned only a national church. Several such wordings were considered and rejected before the much broader wording that we have now was accepted. So it wasn’t merely that they didn’t word it that way, it’s that they considered such wording and explicitly voted it down.

  4. #4 raj
    November 20, 2004

    In the case of the establishment clause, one can go one step further than that and point to specific wordings of the first amendment that would have explicitly banned only a national church. Several such wordings were considered and rejected before the much broader wording that we have now was accepted. So it wasn’t merely that they didn’t word it that way, it’s that they considered such wording and explicitly voted it down.

    Precisely. A commentary on the 1st amendment that is available through Findlaw.com makes that clear. Every successive draft of the amendment broadened the protection, so it should be clear that the protection was not limited to banning the federal government from establishing a national church.

  5. #5 Jon H
    November 20, 2004

    “The other problem with this argument is that it is so easy to circumvent – you simply add a political statement to anything you wish to publish.”

    Actually, in many cases, action against a non-political statement would seem to transform the content into a political statement.

    For example, is a paper on the age of the universe political? Not really. But I think it becomes so if someone tries to ban it because it contradicts the Bible.