Supreme Court

Back When Robert Bork Wasn't Religious Enough to Sit on the Supreme Court


Reason contributor Walter Olson has a piece in the New York Post recalling one of the most hotly contested issues surrounding the recently deceased Robert Bork's 1987 Supreme Court nomination. He's not talking about the back-alley abortion stuff, either:

Here's something you may not know about the 1987 battle that kept Robert Bork off the Supreme Court: Opponents pursued a whispering campaign against him on the grounds that he wasn't enough of a religious believer.

Back then, many Democrats still held seats in the rural South, and the religion angle gave them an easier way to explain their stance to constituents than, We've been asked to oppose him as a party-line matter.

Thus Rep. John Bryant (D-Texas) warned that Bork was "an agnostic who is not a member of any church."

And Sen. Bennett Johnston (D-La.), while disclaiming any "religious test for judges," advised "fundamental religious people" back home to "look, in addition to what he has written, at [Bork's] statements on morals or lack thereof — and I don't mean to suggest he is immoral — but his lack of occupation with morals and with religion."

Sen. Howell Heflin (D-Ala.) told constituents he was "disturbed by [Bork's] refusal to discuss his belief in God — or the lack thereof." Heflin also alluded darkly to the nominee's beard and "strange lifestyle" as a Yale law professor.

You got that? Bork wasn't religious enough! 

Olson notes that while the Bork nomination process set a new low in confirmation hearings and help push presidents toward appointees with less of a paper trail, Bork's general vision of originalism has won out, even among liberal jurists:

"Liberal originalism," which takes seriously the insistence of critics like Bork that judges must adhere to what's actually in the founding document, is making headway among scholars at places like Yale Law School.

Read the whole thing.

Over at the Daily Beast, former Reasoner Michael Moynihan recaps the most awful bits from Bork's 1997 best-seller Slouching Toward Gomorrah, a book that called for quarantining the "libertarian virus" via censorship and other means. Read Olson's review for Reason here.

[Note: Link to Olson review fixed]

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  1. Slouching Toward Gomorrah was a pretty great title, though. It’s like almost calling people “sodomites” but not quite.

    1. It was also a reference to lefty Joan Didion’s earlier work Slouching Towards Bethlehem.

      And, yes.

      1. [cough]Yeats[cough]

        1. That rhymes with Keats, right?

          Fuckin’ librarians and all their fancy book-learnin’.

          1. Is there a worse name for a muse than “Fanny Brawne”?

            1. No, and especially not if you’re thinking of the English meaning of “fanny.”

        2. Bork riffed on Didion who riffed on Yeats.

          Damn you Sug…

  2. RIP Judge Bork.

    And the link to the Olsen review goes to the Moynihan piece.

  3. In an alternate reality, if Ted Kennedy hadn’t done his despicable hatchet job on Judge Bork, Obama would now be getting the opportunity to appoint another justice.

    Stick that in your craw, all you liberals out there.

    1. “Unintended Consequences”… is a difficult concept!

    2. Yeah, and you can endlessly speculate about what-ifs, and it makes absolutely no difference.

    3. And Thomas wouldn’t be on the court.

    4. And by and large, conservatives would probably be thrilled to be rid of Bork, too, after seeing how he actually decided cases…

  4. When Bork’s beard became an issue, the confirmation process jumped the shark.

  5. Back then, many Democrats still held seats in the rural South, and the religion angle gave them an easier way to explain their stance to constituents than, We’ve been asked to oppose him as a party-line matter.

    Nonsense. It’s a well-known article of the progressive faith that after the 1964 Civil Rights Act was passed, all of the Southern Democrats who opposed civil rights changed their party affiliation to Republican immediately.

    This is the word of Prog, blessed be thy name.

    1. What exactly is your point? That there actually is robust Democratic representation in the South, and we are just being fooled by someone? Or that there used to be Democrats in the South (meaning they got elected–no the politicians didn’t all change their affiliation), therefore progressives probably are still racist cretins because they tend to be Democrats, who used to have some representation in the South? I don’t get it.

      1. Progressives were racist from day one.

      2. We are saying you Daily Kos quoting idjits are wrong about Republicans only or even primarily winning in the South due to post 1960s racism.

      3. It’s Thursday. Why are you here?

  6. Someone with THAT beard wasn’t religious enough?

    Ted Kennedy was the lowest scum, in so many ways, but Bork sure was not someone I would have wanted on the Court, either.

    1. Originalist thinking is a good thing, BTW. However, the way Bork tended to apply it was not.

  7. Here’s a choice quote. In talking about why the gov’t needs to censor everything to protect us from our degenerate popular culture and the horrors of pornography, Bork writes:

    Any serious attempt to root out the worst in our popular culture may be doomed unless the judiciary comes to understand that the First Amendment was adopted for good reasons, and those reasons did not include the furtherance of radical personal autonomy.


    1. Did he say what reasons he believed the 1st Amendment WAS adopted?

      1. No, the whole thing is basically a fascist moralist screed demanding that the gov’t start curtailing freedom because he finds almost all modern popular culture loathesome.

        1. I find a lot of modern popular culture loathesome, too. Definitely not porn. Porn is awesome.

          But surely the original originalist must have had some clue that every Amendment in the Bill of Rights was adopted precisely because there is a group of people who hates the particular right that Amendment protects?

          1. Nope, he believes the Founders (I always feel like a Vorta whenever I say that) would never have given us these freedoms if they knew what we would eventually do with them.

            He’s gone over this at length before. He doesn’t believe gov’t powers are islands that exist in a sea of rights; he believes rights are islands in a sea of gov’t power.

            He literally doesn’t believe in the concept of tyranny of the majority. He believes that if the majority decides something, then that decision is by definition not tyranny, since it was reached by the majority.

            He writes that “activist” judges are the greatest threat to liberty, because they curtail the legislature and take away our “most fundamental” freedom, the “freedom to govern ourselves”. Which he sees as slavish obedience to all gov’t dictates, so long as they are arrived at via the democratic process.

            1. Has anyone heard from Tulpa since Bork died?

              1. Tulpa is in mourning that the Greatest Jurist and Legal Mind of Our Times has passed, and now those liberal activist judges will have no one to stop them.

            2. ” He believes that if the majority decides something, then that decision is by definition not tyranny, since it was reached by the majority.”

              That’s modern totalitarian “progressive” thought in a nutshell (not that fabricating a “majority” is beneath the progressives).

      2. Did he say what reasons he believed the 1st Amendment WAS adopted?

        I recall him saying that the 1st amendment was only intended to protect political speech. But that as a practical matter a lot of speech could be cast as being political. Or some such nonsense.

        1. If libertarians support porn as free expression, and libertarianism is political, then how is porn not political?

          Again, it just comes down to “I don’t like it!” Bork’s screed is not legal thought, at all.

        2. Even if the intent is to protect political speech, you still need to protect all speech, or else someone gets to arbitrarily decide what is and is not political speech.

          Fuck Bork. Good riddance.

    2. Yeah, he was an evil motherfucker.

  8. Here’s another gem:

    Free market economists are particularly vulnerable to the libertarian virus. They know that free economic exchanges usually benefit both parties to them. But they mistake that general rule for a universal rule. Benefits do not invariably result from free market exchanges. When it comes to pornography or addictive drugs, libertarians all too often confuse the idea that markets should be free with the idea that everything should be available on the market.


    1. Well, Gojira, I hate to break it to you, but…well, it looks like you have the libertarian virus. You may not even realize you are sick, but I can assure you that you are. You may not realize you need help, but Top Men know that you do. And they are going to do their best to get you Access (TM) to the care you so desperately need. Whether you think you want it or not.

      1. Hmm, is the Libertarian Virus what’s causing my painful, smelly discharge? Because if so, then yeah…I’d like to get that cleared up. Or at least bottle it and sell it as a folk remedy for gout.

        But seriously, I never got why conservatives fellate this guy, except maybe only out of a knee-jerk thought process that if Ted Kennedy doesn’t like somebody, he must be Good People.

        1. Hmm, is the Libertarian Virus what’s causing my painful, smelly discharge?

          You mean your comment here?

          Yes it is.

        2. But seriously, I never got why conservatives fellate this guy, except maybe only out of a knee-jerk thought process that if Ted Kennedy doesn’t like somebody, he must be Good People.

          Yeah, I don’t get it either.
          The truth is this asshole would have made a much beloved democratic appointment.

          Reminds me of the thread the other day where people were talking about how the positions of the two teams are all jumbled up.

          1. I never thought of that, but it’s true. If the dems could have convinced him to lighten up on teh gheys, and instead focus his wrath on their pet projects, he’d have wound up being a progressive’s best friend. His whole judicial philosophy was basically “government can do whatever it wants”, so he was already more than half-way into their camp anyway.

            1. And, as noted by Nick, he was no christfag.

              The SoCons liked him because he defended the Congress regulating abortions and such. But he did so from a pure power perspective, not on any religious-moral grounds.

            2. Just like Romney. He would have made a great Democratic candidate.

              The positions of the teams are so jumbled up that aside from a few mostly symbolic positions, all the team members have to go on is team identity at this point.

        3. Um, because they are statist fucktards also?

          1. Pfft, get back to me when you’ve updated your freakin’ blog.

    2. While I can understand why someone would believe that some addictive drugs cause real distortion in free exchange, what justification is there for banning the sale of pornography? Just that he doesn’t care for it?

      1. Without offering any evidence of course, all he does is talk about how it has a generally corrosive effect on “families” and “traditional morality”. I mean,

        He even finds economic justification for it, because he believes (again without presenting evidence) that a “hedonistic” culture can’t be economically viable in the long-run because people are too busy chasing empty pleasures instead of working hard and producing.

        It’s really all bullshit. Ted Kennedy can burn in hell, but I’ll be damned if I’ll ever defend Bork.

        1. But… The 1st Amendment protects speech that some people with funny beards consider to be “corrosive”. An honest originalist recognizes this fact, even if he doesn’t like it personally (just as at least some “liberals” who don’t like guns, acknowledge that the 2nd Amendment’s intent was to protect individuals’ right to have them).

        2. Another asshole who thinks that society in general owns the potential of all its members.

  9. The irony of Robert Bork is that he was statist proto-totalitarian and would have become progressive’s favorite justice over time.

  10. Bork was not religious enough?

    This is reminiscent of when the Democrats tried to block Scalia’s nomination by spreading the work to MADD and other DWI opponents that Scalia drinks a cocktail before going to bed at night, and that would make him “go easy” on drunk drivers.

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