December 20th, 2012
pejmanyousefzadeh

Robert Bork Dies, and Whatever Is Left Of Jeffrey Toobin’s Sense of Shame Dies with Robert Bork

For those of us old enough to remember Robert Bork’s confirmation hearings for the United States Supreme Court back in 1987, finding out that he has passed away does three things:

  • It makes us feel old.
  • It makes some of us feel sad. More on that in a moment.
  • It revives ancient arguments. More on that in a moment.

There are, of course, some lovely tributes to Bork floating about in cyberspace. Here is one; would that we all be so fondly remembered when we pass on from this vale of tears. Here is an especially famous example of Bork’s especially famous wit. I actually remember reading this back in 1996 as the outlines of the contest between Bill Clinton and Bob Dole had become depressingly clear. I admit to preferring my martinis with vodka, but perhaps I’ll try gin with no olives sometime soon as a tribute to the judge. Who knows; perhaps I will find that my tastes have evolved, possibly prompting a smile from the Heavens.

Of course, only some of us feel sad at the judge’s passing. Jeffrey Toobin, by contrast, seems positive giddy and disgraces himself—along with the publication he defiles with his presence—with a “postscript” of breathtaking dishonesty and meanness. It is bad enough to speak ill of the dead. It is worse to lie about them. But nothing is below Toobin, who only feels safe sliming Robert Bork when Bork cannot respond.

Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century. The fifty-eight senators who voted against Bork for confirmation to the Supreme Court in 1987 honored themselves, and the Constitution. In the subsequent quarter-century, Bork devoted himself to proving that his critics were right about him all along.

Bork was born in 1927 and came of age during the civil-rights movement, which he opposed. He was, in the nineteen-sixties, a libertarian of sorts; this worldview led him to conclude that poll taxes were constitutional and the Civil Rights Act of 1964 was not. (Specifically, he said that law was based on a “principle of unsurpassed ugliness.”) As a professor at Yale Law School, his specialty was antitrust law, which he also (by and large) opposed.

Ignoring the mindless vituperation of the first paragraph and skipping to the second, let’s get to the claim about poll taxes first. As Ethan Bronner points out (pp. 224-25), in Harper v. Virginia Board of Elections, the Supreme Court ruled that poll taxes violated the rights of poor citizens under the Equal Protection Clause of the Fourteenth Amendment. Bork’s critique of the rationale behind the Court’s ruling was that the Equal Protection Clause was designed to prevent racial discrimination, not economic discrimination. Bork’s objection was not “poll taxes are awesome and we should not only keep them, but expand them,” as Toobin’s casual reference would seem to suggest. His concerns were more subtle than that. From the transcript of the Senate Judiciary Committee hearings:

BORK: … I have no desire to bring poll taxes back into existence. I do not like them myself. But if that had been a poll tax applied in a discriminatory fashion, it would have clearly been unconstitutional. It was not. I mean, there was no showing in the case. It was just a $1.50 poll tax.

This Congress had just recently drafted and proposed to the States and had adopted an anti-poll tax amendment to the Constitution which this Congress carefully limited to federal elections so as to leave State poll taxes in place if States chose to have them. That seemed to me a little odd, therefore, that the Court would come along and mop up something that Congress did not bother to amend the Constitution to accomplish. Not did not bother; deliberately did not.

The poll tax was familiar in American history and nobody ever thought it was unconstitutional unless it was racially discriminatory.

Now, in Harper itself Justice Black—who was hardly a man who was insensitive to voting rights—Justice Harlan and Justice Stewart all dissented from the majority holding. Justice Black said the Court was using the old natural law due process formula to write into the Constitution notions of what it thinks is good government policy.

Harper overruled a prior case in which the majority had upheld the poll tax and in that case Justices Black, Frankfurter, Jackson and others upheld the poll tax. Archibald Cox has said, and I quote, “the opinion seems almost perversely to repudiate every conventional guide to legal judgment,” although he liked the result. I like the result too. I just do not see the legal judgment there. Alexander Bickel made much the same criticism. It is a decision that is hard to square with out constitutional history.

So, a mainstream group of Supreme Court justices and legal scholars concurred on the point that the Equal Protection Clause of the Fourteenth Amendment—which again, was designed to combat racial discrimination—cannot be used to combat economic discrimination as in Harper. This doesn’t entail liking a poll tax. Nor does it entail thinking that a poll tax is irrefutably constitutional. (And for the record, I don’t like poll taxes and I quite willingly accept that it is settled law that poll taxes are unconstitutional; no reasonable person has it in mind to revisit the Court’s ruling in Harper.) But Bork’s larger point is that just because one doesn’t like something doesn’t mean that said something is unconstitutional. Toobin, who is a lawyer, ought to understand this, but since Toobin is also a demagogue of especially appalling insincerity, he at least pretends not to in his “postscript.” (I of course allow for the possibility that Toobin is simply too addled to understand these points.)

As for Bork’s comment regarding the 1964 Civil Rights Act, I of course disagree with Bork’s “unsurpassed ugliness” comment, but what Toobin fails to mention is that Bork ended up disagreeing as well. As Bronner notes (p. 68), “Bork himself came to regret and eschew his position.” People do change their views on the issues of the day, and to pretend that those views are permanently cast in stone is fundamentally wrong and deeply dishonest. Lest anyone think that this was simply a “confirmation conversion” designed to win enough votes to vault him to the Supreme Court, even Toobin—for all of the unsurpassed ugliness of his own column—admits that “[t]o his credit, Bork gave honest and forthright answers to the questions posed by the senators on the Judiciary Committee,” when he had been nominated to the Supreme Court. Given that not even Toobin’s character assassination piece is willing to claim that Bork conveniently changed his views on the 1964 Civil Rights Act in order to win votes, no one ought to entertain the idea seriously.

Further on the issue of discrimination: Toobin—being the demagogue and scoundrel that he is—neglects to mention that as a young associate, Bork confronted the partners of his law firm regarding evidence that the firm’s management was anti-Semitic, and demanded that the partners abandon their prejudice against Jews in both their private dealings with Jewish members of the firm, and in their decisions regarding whether to award partnerships to Jewish associates (Bronner, pp. 64-65). As solicitor general, Bork also took a strong stance against gender discrimination in the Justice Department (Bronner, pp. 82-83). Unsurprisingly, none of these data points find their way into Toobin’s “postscript.”

Richard Nixon appointed Bork the Solicitor General of the United States, and in that post Bork showed that he lacked moral courage as well as legal judgment. In 1973, Nixon directed Elliot Richardson, the Attorney General, to fire Archibald Cox, the Watergate special prosecutor. Richardson refused and resigned in protest, as did his deputy William Ruckelshaus. Bork, the third-ranking official in the Justice Department, had no such scruples and thus served as executioner in the Saturday Night Massacre, to his enduring shame.

To Jeffrey Toobin’s enduring shame, this paragraph is a shameless lie. John Bolton sets the record straight:

One of Bob’s most important services to our country is also one of the most misunderstood, during the “Saturday Night Massacre.” When Nixon gave Attorney General Elliot Richardson the order to fire Watergate Special Prosecutor Archibald Cox, Richardson resigned, as he had committed to do in his Senate confirmation hearings if the White House ever tried to interfere with Cox’s investigation. Deputy AG William Ruckelshaus also resigned, as he had similarly pledged to do.

By virtue of these resignations, Bork, the third-ranking official at the Department of Justice, became acting attorney general. Although he had been confirmed before the Watergate affair had become an issue, and never been asked to make such a pledge, Bork told Richardson and Ruckelshaus that he thought he should also resign.

They urged him not to, because then the entire top leadership of the department might have followed suit, and the country plunged into a constitutional crisis the likes of which we had never seen. Richardson and Ruckelshaus urged him to fire Cox to preserve the department’s legitimacy.

Said Richardson: “You’ve got the gun now, Bob. It’s your duty to pull the trigger.” Bork did fire Cox, and paid for it the rest of his life.

This account is substantially backed up by Bronner (pp. 81-82), and all of this information was readily available to Toobin when he decided to write his screed. Either he knew of it and ignored it (which would make him a liar), or he didn’t know of it and couldn’t be bothered to do his research in order to get the facts, (which would make him fabulously incompetent).

Back to Toobin:

In 1981, Ronald Reagan nominated Bork to the United States Court of Appeals for the District of Columbia Circuit, and then, six years later, to the Supreme Court. To his credit, Bork gave honest and forthright answers to the questions posed by the senators on the Judiciary Committee, which was led admirably by then Senator Joseph Biden. Much of the questioning focussed on Bork’s long-held belief that the Constitution does not include a right to privacy. As one of the creators of the “originalist” school of constitutional interpretation, Bork asserted that since the framers did not use the word “privacy,” that value was not reflected in our founding document. Accordingly, he opposed such decisions as Griswold v. Connecticut, which said states could not ban married couples from buying birth control, and Roe v. Wade, which prohibits states from banning abortion. He promised the senators he would reflect those views as a Supreme Court Justice.

So since Toobin disagrees with Bork on Roe and Griswold, this makes Bork an “unrepentant reactionary”? Needless to say, Roe and Griswold both attract a lot of controversy and split the nation down the middle; even those who think that it was stupid of the Connecticut state legislature to pass a law prohibiting the use of contraceptives don’t necessarily agree that “penumbras formed by emanations” from the Constitution create a deus ex machina all-purpose right of privacy that can somehow swoop down and save the day; a better idea may be to encourage people to be politically active so that they can keep legislatures from passing stupid laws in the first place. Oh, and of Roe, Harvard’s Laurence Tribe—a liberal constitutional scholar who opposed Bork and who represented Al Gore in the recount controversy, among other activities that ought to make the likes of Toobin happy—himself admitted that “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Is Tribe also an “unrepentant reactionary” who deserves to be libeled by Jeffrey Toobin?

It was said, in later years, that Bork was “borked,” which came to mean treated unfairly in the confirmation process. This is not so. Bork was “borked” simply by being confronted with his own views—which would have undone many of the great constitutional landmarks in recent American history. As Senator Edward Kennedy put it in a famous speech on the Senate floor, “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, [and] writers and artists would be censored at the whim of government.”

Comes now time for a giggle test: Can you, dear reader, really make the claim—out loud and to another person whose good opinion you respect and covet—that if Robert Bork, all by his lonesome, became a Supreme Court justice, the women among us “would be forced into back-alley abortions” (never mind that even if the Supreme Court strikes down Roe, Doe v. Bolton and Planned Parenthood v. Casey, states can legalize abortion and there is nothing the Supreme Court can do about that), African-Americans who somehow go back to “sit[ting] at segregated lunch counters,” we would be subjected to the whims of stormtroopers, be forbidden from learning the teachings of Darwin and have art censored? Really? All because of one Supreme Court justice?

Last year, Joe Nocera wrote an accounting of Bork’s views that was more sane than anything Ted Kennedy or Jeffrey Toobin managed:

Bork was a legal intellectual, a proponent of original intent and judicial restraint. The task of the judge, he once wrote, is “to discern how the framers’ values, defined in the context of the world they knew, apply to the world we know.” He said that Roe v. Wade, which legalized abortion, was a “wholly unjustifiable judicial usurpation” of authority that belonged to the states, that the court’s recent rulings on affirmative action were problematic and that the First Amendment didn’t apply to pornography.

Whatever you think of these views, they cannot be fairly characterized as extreme; Ruth Bader Ginsburg, among many others, has questioned the rationale offered by the court to justify Roe v. Wade. Nor was Bork himself an extremist. He was a strongly opinionated, somewhat pugnacious, deeply conservative judge.

I wonder if Justice Ginsburg—or for that matter, Laurence Tribe—will be vilified by Democratic senators and Jeffrey Toobin the way that Robert Bork was. Somehow, I doubt it. Hypocrisy is clearly at work here. Nocera continues:

The character assassination began the day Bork was nominated, when Ted Kennedy gave a fiery speech describing “Robert Bork’s America” as a place “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters,” and so on. It continued until the day the nomination was voted down; one ad, for instance, claimed, absurdly, that Bork wanted to give “women workers the choice between sterilization and their job.”

Conservatives were stunned by the relentlessness — and the essential unfairness — of the attacks. But the truth is that many of the liberals fighting the nomination also knew they were unfair. That same Advocacy Institute memo noted that, “Like it or not, Bork falls (perhaps barely) at the borderline of respectability.” It didn’t matter. He had to be portrayed “as an extreme ideological activist.” The ends were used to justify some truly despicable means.

[…]

Mostly, though, the point remains this: The next time a liberal asks why Republicans are so intransigent, you might suggest that the answer lies in the mirror.

Jeffrey Rosen is worth reading:

In the summer of 1987, right out of college, I was a summer intern for Senator Joe Biden, who was chairing the Robert Bork confirmation hearings. My contribution to the epic battle was modest: I helped with research for a speech on the history of the confirmation process, in which Biden argued that the Senate had the duty to scrutinize not only the legal qualifications but also the constitutional views of nominees. This was a controversial proposition at the time; today it has been taken to extremes that neither Biden nor Bork, who died today at 85, could have imagined.

But even from the sidelines, as I celebrated Bork’s defeat, I remember feeling that the nominee was being treated unfairly. Senator Edward Kennedy set the tone with a demagogic attack. “Robert Bork’s America,” he said, “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, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans.”

Bork’s record was distorted beyond recognition, and his name was transformed from a noun into a verb. The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking.

But that’s okay, since at least Jeffrey Toobin can slime and smear Bork to his heart’s content:

Was Kennedy too harsh? He was not—as Bork himself demonstrated in the series of intemperate books he wrote after losing the Supreme Court fight and quitting the bench, in 1987. The titles alone were revealing: ”The Tempting of America,” “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” and “Coercing Virtue: The Worldwide Rule of Judges.” One of his last books may have summed up his views best. Thanks in part to decisions of the Supreme Court—decisions that, for the most part, Bork abhorred—the United States became a more tolerant and inclusive place, with greater freedom of expression and freedom from discrimination than any society in history. Bork called the book, accurately, “A Country I Do Not Recognize.”

Shorter Jeffrey Toobin: “You may not be able to judge a book by its cover, but you can judge it by its title, and that proves that Edward Kennedy was right.”

How incredibly pathetic.

I’ll close by noting that in addition to lying about Robert Bork, Jeffrey Toobin is infamous for, well, this. And this. All of which goes to show that Jeffrey Toobin’s fidelity to fairness, to truth, and to accuracy in reporting and commenting on the issues of the day runs about as deep as does his fidelity to his own wife, his mistress, and his own child.

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