[with contributions from Matthew O'Brien and Darius Tahir]
Robert Bork is not a sitting justice on the Supreme Court. And there is a very good reason for that. During his lengthy career as a legal scholar, he was an outspoken critic of modern constitutional interpretation – arguing, among other things, that the Civil Rights Act was coercive and that Griswold v. Connecticut, the decision that established a right to privacy, had no legitimate basis.
This didn’t make Bork a racist and it didn’t suggest he wanted to ban contraception, as the Connecticut law under review in Griswold did. (As I recall, he actually called the Connecticut law silly.) He was arguing constitutional principle here, at least in theory. But it suggested an extremely pinched, reactionary reading of what the constitution would allow -- and what it could demand. When President Reagan appointed Bork to take a seat on the Supreme Court, then-Senators Joe Biden and Ted Kennedy seized on positions like these to make the case against Bork. And they prevailed.
It’d all be ancient history now, if not for the fact that Bork happens to be the co-chairman of Mitt Romney’s “Justice Advisory Committee.” Romney actually made the appointment in August and almost nobody noticed. Ian Millhiser, a legal expert who writes for Think Progress, was one exception. He reminded everybody of Bork’s record – and did so again on Monday.
If memory serves, Bork has officially recanted at least some of these positions since first taking them. If so, good for him. Legal scholars are allowed to change their minds. But I doubt Romney really cares about Bork’s present-day views. Rather, I suspect he tapped Bork in order to solidify his standing with the far right, which clings to at least some of the same views and considers Bork a martyr to the conservative cause.
Does that make me more comfortable with the prospect of a Romney presidency? Or less? I honestly don’t know.
By the way, Battle for Justice, Ethan Bronner’s book on the Bork fight, is a terrific read – well worth your time if you want to revisit the episode.
More Foreclosures, Please. Congressman Spencer Bachus, the Alabama Republican, wants the super-committee to gut funding for anti-foreclosure programs like HAMP. Really.
So now we're hauling judges before congressional committees? The Atlantic's Andrew Cohen on one of the stupidest -- and, from a constitutional stand point, one of scariest -- things to come out of Gingrich's mouth.
On the Oregon Trail: John Kitzhaber always has interesting things to say about health care. One reason: He's not just Oregon's governor. He's also a physician. Now he’s lobbying the Obama Administration to give him more flexibility on the Affordable Care Act – because he wants to do more than the law would. Will he succeed? Will other governors join him? Sarah Kliff has the story in the Washington Post.
It's the demand, stupid: Karl Smith at Modeled Behavior points out that "poor sales" are not a problem of all bad economic periods. But they are a problem today.
Tiger Beat: On Friday, when President Obama visited a GM plant outside Detroit, I questioned the political optics of appearing alongside the president of South Korea. Free trade, after all, is not exactly popular in these parts. But the coverage focused mostly on the auto bailout, about which Obama has every right to brag. Plus the Tigers hat on President Lee was a nice touch:
Chait Warned Me About This: Speaking of sports, I have a question for Brady Hoke and Al Borges. It's 4th and 1 from State’s 9 yard line, down a touchdown with minutes left in the 4th quarter. So you run play-action – and leave Denard unprotected against a blind-side blitz?
Powerful People You Don’t Know: TNR’s latest issue includes a list of Washington’s “Most Powerful, Least Famous People.” Free subscription to the Daily Deadline if you can guess which three I helped write.
Reader Comment of the Day: From “Nusholtz,” on Herman Cain’s 9-9-9 plan:
I think I figured out why Cain is doing so well with the Republicans. And it's not because his tax plan is something new. He has been saying, "9,9,9" but what he is really saying is "nein, nein, nein" which is German for "no, no, no." And that has been the Republican platform all along.
Video Dedication of the Day: For Bork, here’s Cher. I think the song works on multiple levels.
Cher - If I Could Turn Back Timeby jpdc11
Update: I tweaked wording and softened, just a bit, the item about Gingrich.