Robert H. Bork, the nightmare we thought was long behind us, materialized again overnight when Justice Sandra Day O’Connor announced her retirement. Bork appeared on CNN castigating the centrist judge and lamenting the injustice of her having been on the court all these years while he was not.
President Reagan nominated Bork for a seat on the Supreme Court in 1987 but the Senate overwhelmingly rejected him in one of the most contentious confirmation battles in history. It was arguably the Senate’s finest hour but it did galvanize the American right, which dedicated itself to never again allowing an extremist candidate for the federal judiciary to be outed in that fashion.
The Wall Street Journal coined the verb “borked,” which has become a part of the common parlance. It is supposed to mean to be rejected for the federal bench on account of philosophy. If such a verb were to be countenanced by the lexicographers it ought to be “fortased,” after Justice Abe Fortas, whose nomination as chief justice was filibustered to death by Republicans in 1968 because of his views on racial equality and the Bill of Rights.
Bork turns up in news stories, blogs and commentaries with such regularity that you would think President Bush is about to appoint him. He is held out in some quarters as the template for the person Bush should nominate — a deep thinker, an advocate of judicial restraint. Although he taught at Yale (a querulous Bill Clinton was one of his pupils), there is little evidence that he was either.
Yet he does deserve attention, but of the careful kind. Bork is the perfect exemplar of the kind of person — shallow, rigid and partisan down to his very soul — that a president should not try to put on the court.
A federal judge is a man who knew a senator. The snide old definition recognizes a historical truth: party affiliation is how a person gets attention and gets nominated for the federal bench. But it is quite another thing to qualify judges by their fierce fealty to party, sponsors or interest groups so that they put those interests above the search for justice. It negates the reason the founding fathers insisted on life tenure for judges, the freedom to act on conscience. Demonstrated partisan and ideological orthodoxy was the standard of Ronald Reagan. It gave us the court that stopped the Florida vote counting and declared George W. Bush the winner.
Robert Bork met the standard in 1973 when, as the newly minted acting attorney general for Richard Nixon, he illegally fired the special Whitewater prosecutor, Archibald Cox, because Cox was subpoenaing White House tapes, which would expose Nixon’s criminal actions. Eliot Richardson and William D. Ruckelshaus had resigned as attorney general rather than comply with Nixon’s orders to fire Cox and break the law. Bork was more than happy to do it. The national fury over what came to be called the “Saturday Night Massacre” forced Nixon to allow the appointment of another independent prosecutor.
But you knew where Bork would always stand — with the powers that put him there — and it got him on the D. C. Court of Appeals in 1983, where he would rule in every single case for utilities against customers, for big business against environmental, consumer and worker interests and for big government as long as it was in the service of big business.
Arkansans have a good way, their thinner pocketbooks, to evaluate Bork’s celebrated judicial restraint.
The state discovered in 1979 that Middle South Utilities had developed a plan to shift 36 percent of the cost of a $3.5 billion nuclear power plant in Mississippi to Arkansas electricity customers, who had borne alone the cost of new nuclear- and coal-fired plants in Arkansas. Arkansas didn’t need any of the Grand Gulf, Miss., power and briefly got out of the deal. But Reagan’s Federal Energy Regulatory Commission and ultimately Bork’s court got into it. Bork cast the deciding vote that broke precedent and held that the federal government could regulate the internal agreements of holding companies and states. Saddling Arkansas customers, who already paid the highest rates in the region, was perfect, the court said.
But Bork wanted to go much further. In a partial dissent, he came up with a cockamamie formula to force Arkansas to pay for all the Mississippi plant and nearly all of another new nuke plant in south Louisiana. If he had persuaded one judge to go with him, your light bills the past 20 years would have been about the highest in America, halting industrial expansion in its tracks and further impoverishing the state. Louisiana is pushing a version of Bork’s idea now to force Arkansans to subsidize more of Louisiana’s electric bills.
Dismayed lawyers charitably thought that Bork stupidly had not read the case and was flummoxed by it, but more likely it was just meanness. Arkansas had not voted for Reagan in 1980 and Louisiana and Mississippi had. Arkansas had a pair of Democratic senators and a Democratic governor who had famously challenged him in the constitutional law class at Yale and who was now fighting the Grand Gulf deal. Let’s just show the yokels who elected them, he thought.
That’s just a guess, mind you. But if George Bush hears about it, Bork may get his chance on the court yet.