Jonathan Chait has an essay in Friday’s LA Times about Robert Bork and the myth of his unfair demonization and martyrdom. Among the partisan and pedestrian right (though in many cases not the intellectual right), Bork is still viewed as The One Who Started It All, the Supreme Court nominee whose case turned the nomination hearings into a televised bloodbath of opposition research and false claims. Chait sets the stage:
The legend of Robert Bork’s martyrdom casts a shadow over the upcoming Supreme Court nomination, as it has over every nomination for the last 18 years. Bork, for those who somehow haven’t heard his tale of woe, was nominated in 1987 for the court, only to be defeated at the hands of a savage liberal attack painting him as an ultraconservative menace.
To this day, conservatives invoke the Bork nomination as a catalyzing event, one that made clear to them the full perfidy of the liberal establishment. They wave the bloody robe of Bork as justification for every hardball tactic, from impeachment to the “nuclear option” on filibusters, and vow never to let it happen again (at least not to them). Even some liberals are sheepish and apologetic about the Bork affair. Bork himself appeared on television recently to note, with evident satisfaction, that many dictionaries now define “Bork” as a verb, meaning “to attack with unfair means.”
The problem with this martyrdom myth, as Chait points out, is that it ignores one very important thing – the fact (and yes, I’ll argue it is a fact) that Bork was a very bad choice for the Supreme Court and the Senate was indeed right to reject his nomination. I certainly won’t defend every statement made by those in the Senate who advocated against him, but the truth still remains that Bork truly does have views far outside the mainstream and if his views were to become precedent, America would be far less free than it is today. And as Chait points out, the intervening years have only shown the case against Bork to be stronger, not weaker. Freed from the constraints of seeking higher office, Bork’s written and spoken views have gotten more and more shrill and, quite frankly, nutty. Walter Olson, a libertarian conservative legal scholar with the Manhattan Institute, hit the nail on the head in reviewing Slouching Towards Gomorrah:
Slouching became a national best-seller, and it’s a book likely to have unhappy consequences for some time to come. One is to finish off any reputation that Judge Bork, who once studied economics at the University of Chicago, might have retained as even vaguely sympathetic to libertarian ideas and concerns. America’s real problem, he now proposes, is that Americans enjoy too much freedom, not too little. One chapter title inveighs against “The Rage for Liberty and the Pursuit of Happiness”; throughout the book “liberty” and “pursuit of happiness” turn up as pejoratives. Bork traces “our modern, virtually unqualified enthusiasm for liberty” in part to the Declaration of Independence, a document whose influence he generally deplores. He assails as “both impossible and empty” John Stuart Mill’s principle that law should interfere with the individual’s liberty only for the sake of protecting other persons. Instead he calls for “law based on morality”: “society may properly set limits on what may be shown, said and sung.” His pivotal chapter is titled “The Case for Censorship.”…
For a “serious attempt to root out the worst in our popular culture,” he wishes to argue, “directly coercive responses may be required.” When he proceeds to his call for censorship, he has little patience for the drawing of conventional lines between private adult perusal (OK) and public display or availability to children (not necessarily OK). Government should be regulating adults’ morals every bit as much as children’s, in his view. Remarkably, he manages to view bawdiness behind closed doors as worse, not better, than in public places: “The more private viewing becomes, the more likely is it that salacious and perverted tastes will be indulged.” He brushes aside as irrelevant efforts to get the taxpayers out of funding such things: Mapplethorpe’s and Serrano’s pictures “should not be shown in public, whoever pays for them.” His premise, in fact, is the government’s right to guide and shape the characters of adults, which means that in his view censorship should cover violence as well as sex, and plain old prose as well as videos, record lyrics, and the like.
This is hardly a surprise coming from the man who believes that the first amendment protects only explicitly political speech, and who also argued that there is a surreal equivalence between an individual’s desire to do something and someone else’s desire to stop them. But as Olson and Chait both point out, since Bork’s rejection by the Senate, he has become little more than a nag and a scold, even suggesting that the fall of the Berlin wall may have been unhealthy for the East Germans because it exposed them to decadent Western culture. Couple that with his insistence that anything not named explicitly in the Constitution as a right is fair game for government coercion – an especially ironic opinion from someone claiming to be an originalist – and it is clear that Bork’s views are a recipe for authoritarianism and more government control.
Ironically, Chait points out that there is a very useful historical parallel for Bork’s martyrdom myth in the Alger Hiss case. After Hiss was accused by conservatives of being a Soviet spy, the left turned him into a martyr as well, a “perfect morality tale, in which the left played the role of the persecuted innocent, and Hiss’ accusers revealed their bottomless villainy.” But time has shown that while not every charge aimed at him may have been accurate, Hiss was in fact a Soviet spy. The same is true of Robert Bork. Far from being a martyr, the truth is that we should each be thankful every day that Bork was rejected for the nation’s highest court. It was a bullet we just barely dodged.