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.