Romney Selects Robert Bork as Legal Advisor: Was Rejected as Supreme Court Nominee

After the American Century

Robert Bork

Gov. Romney has made a disturbing decision. He has appointed Robert Bork, an extremist, as his chief legal advisor, as discussed in the New York Times editorial page. A former professor at Yale, Bork was rejected as a Supreme Court nominee by a wide margin in 1987, and he has since that time moved further to the right. In recent years he converted to Catholicism and he is now married to a former nun. Bork is perhaps most (in)famously recalled by the public for the "Saturday Night Massacre" in 1973. That is, he was the man who fired Watergate Special Prosecutor Archibald Cox who was getting too close to the truth. That Bork would carry out this order from Richard Nixon rather than resign (as his superior did) says a great deal about his character and opinions.

Romney might have chosen any number of reputable conservative thinkers who are less controversial. Making Bork the head of his "Justice Advisory Committee" suggests that Romney agrees with Bork's extreme views. It also suggests the kind of nominees he might try to send to the Supreme Court. 

What, then, does Bork stand for? A great many things, but here are a few of them:

(1) Chicago School style economics applied to the law. He famously argued that mergers and near monopolies should not be opposed by law, because they in fact benefit consumers. (I am not making this up.)

(2) He has opposed the Supreme Court's decision (in a series of cases) to acknowledge and defend a right to privacy.  (See Dronenburg v. Zech, 741 F.2d 1388, decided in 1984.) At issue in this case was a gay man's right to privacy, not at all incidentally.

(3) Despite his general advocacy of something much like strict-construction of the Constitution (adhering to the ideas of the authors of that document in the late eighteenth century), Bork supports a new amendment to the Constitution that would allow large Congressional majorities to override Supreme Court decisions.

The late Senator Ted Kennedy vehemently (and successfully) opposed Bork's nomination to the Supreme Court in 1987, and his words are worth repeating here:

"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy ... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice."

Bork now provides Romney with advice on justice? Presumably this is part of his outreach to the Republican Right, but it will only confirm Romney's unpopularity with women and minorities.

Republicans and Democrats: changing regional support

After the American Century

The Republicans have changed a great deal in the twentieth century. Back in 1901 they were led by Teddy Roosevelt, and he won reelection in 1904 with scarcely any support in the South. That was solidly Democratic, and remained so until the 1960s. Then in 1964 Barry Goldwater did poorly in the general election, but won several states in the Deep South. Richard Nixon took note, and made a concerted effort to win in that region, where Republicans had been anathema since the Civil War. The Republicans long were despised below the Mason-Dixon line, as the party of Lincoln and Reconstruction.

The sea-change that followed Nixon's 1968 triumph in the South was astonishing. It was as if two men who had been wrestling furiously until they emerged from their struggle wearing each other's clothing. The Republicans ended up switching regions, as it were, and today the so-called "red states" they tend to win are mostly the old slave states. Lincoln would be astonished to find that his home state of Illinois is solidly behind Obama, the Democrat, while his party is very strong in Mississippi and Georgia. Likewise, the Democrats are now strong in the North where they seldom could win electoral votes for generations after the Civil War.

By meeting in Minneapolis, the Republicans are trying to keep their brand national. At the party's birth in the 1850s it was strong in the Middle West, and stood for free labor against the slave South. But it has not been the party of affirmative action or the equal rights amendment. In my childhood, Republicans often called themselves "the party of Lincoln." One hears this seldom now. Where Black Americans once overwhelmingly voted Republican, they now vote almost entirely Democratic, often over 90%. Women likewise tend to vote more for Democrats, but by less dramatic margins. In 1992, had only men been allowed to vote, George Bush would have been reelected. Had only whites been allowed to vote, Bush also would have won. Blacks and women made Clinton president.

So the party that abolished slavery lost its Black support, moved its center of power from North to South, and embraced religious conservatism. Yet it also remained the party of businessmen. Ronald Reagan was able to remain popular with these somewhat contradictory constituencies, and he also kept the Republicans strong in California. Today, the Republicans are weak there, as well as in New York, however, and they tend to be stronger with businessmen in older, heavy industries than in the high-tech and computer areas.

Is the party still national, or has eight years with George Bush cemented its Southern identity? Certainly, it seems unlikely to win much in the Northeast or the West Coast. Holding the convention in St. Paul is designed to keep its brand visible. Indeed, the hope is that they might win Minnesota. Neither McCain nor Palin has Southern roots or a drawl, and clearly the GOP thinks it can be viable in many Midwestern and Western states. At the same time, Obama is attempting to compete in every state, hoping to break or weaken the Republican hold on such places as Nevada, Montana, North Dakota, Indiana, North Carolina, and Virgina, and keen to win back Florida, if possible.

Will the 2008 election be a watershed event like that in 1968? Probably not. But it may begin a process of realignment, as both parties try to win in new areas. Conceivably, if Obama does very well, the Republicans could lose much of their western base, and be reduced to a regional, southern core. Alternately, if McCain does very well, the Democrats might be reduced to the party of the Northeast and the West Coast, with little in between.

If the two parties remain roughly in their present positions, however, things will hardly be so neatly regional. The New York Times electoral map currently suggests that if the election were held tomorrow there would be 251 electoral votes for Obama, 229 for McCain, and 60 too close to call. Real Clear Politics thinks twice as many electoral votes are up in the air, a total of 125. Both agree, however, that six states are balanced on a knife edge and could go either way: Michigan, Ohio, Colorado, New Mexico, Nevada, and New Hampshire. Not surprisingly, on Labor Day, Obama was in one of the largest of these: Michigan.