Bork, R

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NO MERRI

see originalism

bad sw url?

IRAN-CONTRA DENTED RR?

dan troy clerk vioxx CLARENCE GINNI

U CHICAGO

isi koch

tobacco

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master plan fed soc vt sen indep

bork? office legal policy personnel BK? b43 originalist

rematch with cox camp fin case

AI: Edwin Meese III, a Republican attorney and law professor, gave the Office of Legal Policy (OLP) within the Department of Justice a clearer role during his time as Reagan's administration's attorney general:

Judicial nominees: Meese led the search for judicial nominees.
Policy coordination: Meese made the OLP the focal point for coordinating department policy.
Conservative legal thought: Meese contributed to the long-term development of conservative legal thought.
Originalism: Meese's emphasis on originalism brought a new development from the legal academy into the real world of legal policy.

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https://en.wikipedia.org/wiki/Antonin_Scalia

In 1981, he became the first faculty adviser for the University of Chicago's chapter of the newly founded Federalist Society.^[32]

In 1986, Chief Justice Warren Burger informed the White House of his intent to retire. Reagan first decided to nominate Associate Justice William Rehnquist to become Chief Justice. That choice meant that Reagan would also have to choose a nominee to fill Rehnquist's seat as associate justice.^[38] Attorney General Edwin Meese, who advised Reagan on the choice, seriously considered only Scalia andRobert Bork, a fellow judge on the DC Circuit.^[39] Feeling that this might well be Reagan's last opportunity to pick a Supreme Court justice, the president and his advisers chose Scalia over Bork. Many factors influenced the decision. Reagan wanted to appoint the first Italian-American justice.^[40] In addition, Scalia was ten years younger and would likely serve longer on the Court.^[38]Scalia also had the advantage of not having Bork's "paper trail";^[41] the elder judge had written controversial articles about individual rights.^[42] Scalia was called to the White House and accepted Reagan's nomination.^[38]

...In 1982, President Reagan appointed Bork to the Court of Appeals for the District of Columbia Circuit.In 1987, Reagan nominated Bork to the Supreme Court after Justice**Lewis Powell**announced his retirement.His nomination precipitated unprecedented media attention and efforts by interest groups to mobilize opposition to his confirmation,^[3] primarily due to his criticisms of the Warren and Burger courts' interpretations of the Constitution, especially of the First Amendment and the constitutional right to privacy, and his role in the Saturday Night Massacre.

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But as an explicit judicial theory, originalism came into its own in the early 1980s. Initially, as popularized by Reagan-era Attorney General Ed Meese and the late failed-Supreme Court nominee Robert Bork, the doctrine asserted that the most important terms and provisions that appear in the Constitution and the Bill of Rights should be understood according to the “original intent” of the Founding Fathers, rather than as broad concepts that acquire depth, content and more complete meaning over time in response to changing social conditions.

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an 12 22

https://www.alternet.org/supreme-court-robert-borks-revenge/

This is the first of a multi-part Dig series, The Supreme Court’s War on the Future, investigating how the Supreme Court was remade in the image of Robert Bork.

To fully appreciate and understand the Supreme Court’s hard cut to extremism, start with the failed nomination of Robert Bork in 1987. Bork never made it to the summit of the judiciary, but the legal theory of “originalism” he pioneered now thoroughly dominates the bench.

The Supreme Court’s controlling majority of six Republican activists has embraced originalism as an article of faith and practice. Under the stewardship of Chief Justice John Roberts, the court has deployed its tools and techniques to reinterpret the Constitution and create a legacy of legal devastation with a series of landmark rulings on voting rights, gerrymandering, union organizing, the death penalty, environmental protection, gun control, abortion and campaign finance. The court’s current session, which opened in early October, promises to deliver more of the same, with cases on “religious liberty” and LGBTQ discrimination, the “independent state legislature” doctrine, affirmative action and more.

Roberts and company are Bork’s ideological offspring and revenge. Their jurisprudence is the culmination of a project that began with Bork long before his rejection by the Senate.

Until his failed Supreme Court nomination, Bork had a storied career. In March 1973, while on hiatus from Yale, Bork joined the Nixon administration as solicitor general. In October of that year, he was named acting attorney general and subsequently followed Nixon’s orders to fire Archibald Cox, the first Watergate special prosecutor, in what became known as the “Saturday Night Massacre”. In 1982, Reagan appointed Bork to the District of Columbia Circuit Court of Appeals, a position he held until 1988.

As a primary architect of originalism, Bork had become by the mid-1980s — along with Ed Meese, Reagan’s attorney general — the face of a legal counterrevolution aimed at reversing the expansion of civil rights and liberties that had been achieved during Chief Justice Earl Warren’s tenure on the court (1953-1969). His mission was to turn back the judicial clock to a pre-New Deal version of the United States.

A prolific writer as both an academic and an appellate judge, Bork argued at various points in his career that the Constitution contained no implied right to privacy, that Roe v. Wade was wrongly decided, and the Civil Rights Act of 1964 was unconstitutional. He also rejected the “one person, one vote” principle of legislative districting. Bork’s outspokenness and abrasive demeanor set him apart from the growing corps of conservative lawyers and legal scholars that were coalescing in the 1980s, making him a vulnerable target for Democrats determined to keep him off the nation’s highest judicial body.

* * *

The campaign to torpedo Bork’s nomination took shape quickly. On July 1, 1987, the day, Sen. Ted Kennedy (D-Mass) took to the senate floor to denounce Bork’s selection to replace retiring conservative jurist Justice Lewis Powell. (Powell is best remembered in progressive circles for a confidential memo he penned in 1971 urging business leaders to become more involved in high-stakes litigation and the selection of judges, advice that led to the formation of institutions such as the Business Roundtable, the Heritage Foundation, the Pacific Legal Foundation, the Cato Institute, the Federalist Society and the Chamber of Commerce National Litigation Center.)

In words that would come to doom Bork’s nomination and spark a roiling debate about originalism that continues to this day, Kennedy decried what he called “Robert Bork’s America” as “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 would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.”

For 12days in September, the Senate Judiciary Committee debated Bork’s qualifications, and heard five days of candid testimony from Bork himself. Much of the scrutiny focused on originalism as a method of constitutional interpretation and judicial decision-making. The prominent constitutional scholars that testified against Bork included Professor Laurence Tribe of Harvard and Professor Philip Kurland of the University of Chicago, who had worked as a consultant to the Senate Judiciary Committee during the Watergate investigation.

Outside the D.C. Beltway, another fierce battle took place. By the time the Senate hearings commenced, anti-Bork forces had raised a war chest of $12 million. In a manner similar to today’s political campaigns, the money was spent on focus groups, opinion polls, media consultants and especially on print, radio and TV advertising.

A newspaper ad taken out by the National Abortion Rights Action League asserted a vote for Bork was the equivalent of voting for a politician who threatened to reverse “every advance women have made in the 20th century.” Similar ads were placed by the National Education Association and Planned Parenthood.

Most devastating of all was a 60-second paid for by People for the American Way and narrated by the famed actor Gregory Peck. In his best Atticus Finch voice, Peck sounded the tocsin:

"Robert Bork wants to be a Supreme Court justice, but the record shows he has a strange idea of what justice is. He defended poll taxes and literacy tests which kept many Americans from voting. He opposed a civil rights law that ended 'whites only' signs at lunch counters. He doesn’t believe the Constitution protects your right to privacy. And he thinks that freedom of speech does not apply to literature and art and music. Robert Bork could have the last word on your rights as citizens. But the Senate has the last word on him.”

On the other side of the divide, Reagan went to great lengths to salvage the nomination, describing Bork’s appointment as his “top domestic priority.” But even the “Great Communicator” couldn’t get his message to resonate. Public opinion, which trended slightly in favor of Bork in early September, turned decisively against him by the end of the month. A Tribune Media poll released on Sept. 28 showed the public opposed the nomination by nearly a 2-to-1 margin.

Bork’s prospects officially came to an end on Oct. 23, 1987. With six Republicans crossing party lines, the full Senate turned thumbs down against him by a vote of 58-42, the most lopsided vote against a high court candidate in U.S. history. His fall from grace was colossal. Ever since, judicial nominees have come to be wary of being “Borked,” a term that has entered the lexicon as a synonym for rejection in the face of adverse publicity and harsh cross-examination. Bork resigned from the Court of Appeals in 1988 and returned to academia, becoming a dyspeptic critic of liberalism, bemoaning the decline of Western culture, which he addressed with special bile in his book, Slouching Toward Gomorrah: Modern Liberalism and American Decline (1996). He died in relative obscurity in 2012.

* * *

Bork was defeated, but originalism lived on. Even before his nomination, the theory had established a beachhead on the court with the confirmation of Antonin Scalia in 1986. Although Scalia was in many ways as doctrinaire as Bork, the Senate unanimously confirmed him 98-0 on the same day it voted in favor of William Rehnquist’s elevation to the position of chief justice by a margin of 65-33. Having spent their capital in a losing bid to block Rehnquist, Senate Democrats were either too dispirited, disorganized or not yet fully aware of the dangers and potency of originalism to put up a fight against the first Italian-American justice. Compared to the treatment Rehnquist and Bork received, Scalia’s confirmation hearing was a lovefest.

Scalia was nine years younger than Bork and had served with him on the D.C. Court of Appeals. Scalia also had a background in academia. In 1982, as a law professor at the University of Chicago, Scalia helped organize one of the first chapters of the Federalist Society, and became the chapter’s faculty advisor. He remained active in the society as a coveted speaker and symposium guest until his passing in 2016.

In 1991, the Senate narrowly confirmed another self-declared originalist and Federalist Society member, Clarence Thomas, after a bitter confirmation hearing highlighted by Anita Hill’s explosive allegations of sexual harassment. Nominated by President George W. Bush, Thomas also came to the high court by way of the D.C. circuit, but had produced only a modest paper trail, obscuring his future political machinations. Two years later, however, according to The New York Times, Thomas told two of his law clerks that he planned to serve on the court until 2034, and until then would make the lives of liberals “miserable.”

Scalia and Thomas brought a new brand of originalism to the court that arose in response to critics who charged that the actual intentions of the framers of the Constitution were too varied, conflicting and often ambiguous to serve as a basis for judicial decision-making. Instead of emphasizing original intent, they and other “new originalists” focused on the “original public meaning” of Constitutional provisions, which, they contended, could be ascertained from the recorded debates of the founding era and from such sources as late 18th-century dictionaries. The key, as law professors Michael Rappaport of the University of San Diego and John McGinnis of Northwestern University, explained in an influential 2007 law review article would be to determine “how a reasonable person at the time of the Constitution’s adoption would have understood its words and how they thought they should be interpreted.”

All originalists — whether of the old or new stripe — contend that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.

In fact, originalism does nothing of the sort. Fordham University history professor Saul Cornell summed up the fatal flaws of the theory in a scathing 2011 Dissent article, New Originalism: A Constitutional Scam. The first academic iteration of Originalism, Cornell wrote, rested on “shaky historical foundations” because the Founders “did not speak with a single voice on most constitutional questions.” New Originalism, embodied by the more activist Federalist Society, was in Cornell’s estimation even more dubious, amounting to “little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”

Result-oriented judging, of course, has existed from the earliest days of the republic. Originalism in a nascent form existed long before the term was attached to a specific legal philosophy in the latter part of the 20th century. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. citizens. Plessy v. Ferguson, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the 13th, 14th, and 15th amendments, is another originalist landmark.

Originalism in a nascent form existed long before the term was attached to a specific legal philosophy in the latter part of the 20th century. One of its earliest expressions came in the Dred Scott case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. citizens.

As the court entered the second decade of the 21st century, however, it remained divided between conservatives, liberals and centrists, often dividing 5-4 in major rulings. The ascension of Donald Trump as the 45th president in 2016 and the death of Justice Ruth Bader Ginsberg in 2020 radically altered the balance.

During the 2016 presidential campaign, Trump promised that, if elected, his judicial nominees would “all [be] picked by the Federalist Society.” Before the election, Trump released two lists of Supreme Court candidates, both compiled by the Federalist Society and the far-right Heritage Foundation.

After the election, Trump proved for once true to his word, meeting with Leonard Leo, then the Federalist Society’s executive vice president, to map out plans for selecting Scalia’s successor. Soon thereafter, Leo took a leave of absence from the society to formally advise Trump on the confirmation process for both Neil Gorsuch, who succeeded Scalia, and Brett Kavanaugh, who replaced the retiring centrist Anthony Kennedy. Leo had done the same in 2005-06, counseling President George W. Bush on the nominations of Roberts and Samuel Alito.

It’s easy to understand why Trump was attracted to the Federalist Society. From its fledgling beginnings as a debating club at a handful of elite law schools in the early 1980s, the society had mushroomed into a nationwide networkof 70,000 economic, social and Christian conservatives, along with right-wing libertarians, organized in lawyers’ chapters in 90 cities, and with student affiliates in nearly every major law school. No longer a shoestring operation, the society’s 2016 budget exceeded $26 million, raised in large part from contributions by right-wing philanthropists like the Koch brothers and other deep-pockets like the Mercer, Scaife, and Lynde and Harry Bradley foundations.

Trump also pledged during the 2016 campaign that his Supreme Court nominees would be “originalists” in the mold of Scalia. He fulfilled that pledge, too, with the selection of Gorsuch, Kavanaugh and, finally, Amy Coney Barrett. Barrett’s confirmation in 2020 brought the number of former or current Federalist Society members on the tribunal to six. (Though Roberts says he doesn’t recall belonging to the Federalist Society, the group listed him as a member in its 1997-98 directory.)

For the most part, Barrett followed the post-Bork strategy of other high-court nominees, refusing in her confirmation hearing to give direct answers to important questions such as whether the Constitution requires a peaceful transfer of power, or if a president can pardon himself for federal crimes.

New Originalism, embodied by the more activist Federalist Society, was in Cornell’s estimation even more dubious, amounting to “little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”

But when asked by Sen. Diane Feinstein (D-CA) what it means to be an originalist, Barrett readily replied: “In English, that means that I interpret the Constitution as a law and that I interpret its text as text, and I understand it to have the meaning that it had at the time people ratified it. So that meaning doesn’t change over time, and it’s not up to me to update it or infuse my own policy views into it.” In an exchange with Sen. Amy Klobuchar (D-MN), she also revealed that Roe v. Wade was not a precedent the court could never reconsider and overrule.

And so, the stage was set for the court to implement an even more regressive form of originalism. In June, it handed down its opinions in Dobbs v. Jackson Women’s Health Organization and New York Rifle & Pistol Association v. Bruen. In Dobbs, the court not only upheld a restrictive Mississippi abortion law, but finally made the far right’s fevered dream of overturning Roe v. Wade and Planned Parenthood v. Casey come true. In Bruen, the court struck down a century-old New York state regulation on concealed handgun permits as violative of the Second Amendment.

In both cases, the court abandoned the traditional methods of judicial scrutiny that require judges to determine the constitutionality of challenged laws by balancing the governmental interests advanced by the laws in question against the competing rights of individuals affected by the laws. In place of interest-balancing, the court substituted a test based exclusively on the Justices’ highly selective reading of history and their sense of tradition.

Writing for a 5-4 majority in Dobbs, Alito advanced the march toward right-wing judicial supremacy, declaring that both Roe and Casey were “egregiously wrong from the start” because the word “abortion” doesn’t appear anywhere in the first eight amendments to the Constitution, or anywhere else in the text. He also held that abortion cannot be considered an implied or “unenumerated” fundamental right under the 14th Amendment’s due process clause — as Roe and Casey both held — because it is not “deeply rooted in [our] history and tradition.” As a result, he concluded, the court was free to overrule Roe and Casey unconstrained by the doctrine of stare decisis, which holds that judges should adhere to precedent.

Instead of respecting precedent, Alito reached deep into the bowels of Anglo-American common law to override it. He cited, among other sources, the work of Henry de Bracton, a 13th-century English cleric and judge who condemned abortions as homicide, and a 17th-century English jurist who described abortion as a “great crime” and sentenced at least three women to death for witchcraft. By the time the 14th Amendment was ratified in 1868, Alito raged on, “three-quarters of the States [had] made abortion a crime at all stages of pregnancy,” in order to prove his point that abortion rights are not deeply rooted in our history.

The only solution, in Alito’s view, was to strip abortion of its Constitutional protections and return the issue to “the people’s elected representatives,” opening the door to state abortion bans and the possibility of a future federal statute outlawing abortion nationwide.

Alito’s reading of history was shoddy. Not only did he give no weight to the 50 years that Roe had been the law of the land, but he ignored the actual early history of abortion rights in America. As University of Illinois history professor Leslie J. Reagan explained in her definitive study, When Abortion Was a Crime, “During the eighteenth and early nineteenth centuries…abortions were illegal only after ‘quickening,’ the point at which a pregnant woman could feel the movements of the fetus (approximately the fourth month of pregnancy).”

Repudiating Roe and Casey was also unnecessary. The court easily could have upheld the Mississippi statute, which outlawed almost all abortions after 15 weeks, without scrapping the federal right entirely, as Roberts urged in a separate opinion.

Clarence Thomas wrote the 6-3 opinion in Bruen, which was joined by all the court’s Republican appointees, including Roberts. Like Alito, Thomas applied a specious history and tradition test to strike down New York’s long-standing handgun permit system. In so doing, he dismissed the broad history of gun regulation in the U.S., dating back to the earliest days of the republic. As Fordham’s Professor Cornell, one of the foremost authorities on the actual history of the Second Amendment, observed in a critique of Bruen published by SCOTUSBlog:

“The originalist methodology applied by Thomas has one set of rules that apply to interpreting legal texts that support gun rights, and another more demanding set of standards that apply to those that undermine them.The Thomas version of originalism might be summarized as follows: No amount of evidence is enough to support gun control, but no iota of evidence is too little to legitimate gun-rights claims.If one of the goals of originalism was to limit judicial discretion (a value few originalists continue to espouse now that they have a supermajority on the court), then the Thomas rule does the opposite. It provides a license to cherry-pick evidence with reckless abandonif the materials support the ideological agenda of the Federalist Society.”

Combined with the public leak of the draft of Alito’s Dobbs opinion in May and the fast-brewing scandal involving the role of Ginni Thomas in events related to the Jan. 6 insurrection, the court’s move to the right has triggered a crisis of legitimacy.In increasing numbers, Americans have lost trust in the court as an institution, and have come to see it correctly as a political body rather than an impartial arbiter of justice. The Dobbs decision is deeply unpopular, with 60% of respondents in recent rolls disapproving of the ruling. According to a June Gallup survey, Americans’ confidence in the court has plummeted to a new low. A mere 25% of respondents told Gallup they had “a great deal” or “quite a lot” of confidence in the Court.

And more bad decisions are on the horizon. In his concurring opinion in Dobbs, Thomas called upon his benchmates to revisit such privacy-based precedents as the right to contraception (Griswold v. Connecticut, 1965), the right to engage in same-sex intimacy (Lawrence v. Texas, 2003), and the right to same-sex marriage (Obergefell v. Hodges, 2015). Thomas and Gorsuch are also on record as favoring reconsideration of New York Times v. Sullivan (1964), another product of the Warren Court that shields the media from potentially crippling defamation lawsuits. Reaching even farther into the future, originalist academics such as the University of San Diego’s Rappaport have questioned the constitutionality of Social Security and Medicare.

There is a better and more reality-centered way to adjudicate constitutional issues. Originalism’s rival, known variously as “living or dynamic constitutionalism,” asserts that while the text of the Constitution may be the starting point of any analysis, the meaning of the Constitution should evolve over time and accommodate contemporary values, social needs and changing traditions.

A good example of the alternative can be found in Kennedy’s majority opinion in Obergefell. As the court’s swing justice, Kennedy sometimes adopted originalism, as he did in his 2010 opinion in Citizens United v. F.E.C. In Obergefell, he took a full-throated living constitutionalism approach, writing:

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

It is no small irony that Kennedy was nominated to the court after Bork was defeated. But Kennedy retired in 2018, replaced by Kavanaugh, whose confirmation Senate Democrats were unable to halt.

There’s no denying the future of the Supreme Court looks grim. Still, as the successful fight against Bork long ago demonstrated, hope should never be abandoned. With enough public pressure and effective organizing, the court can be reformed and brought to serve the nation’s needs in the 21st century.

The prospects for reform will be subject of part II of this series.

===

[### The Original Sin of Robert Bork

Cato Institute

https://www.cato.org › commentary › original-sin-robert...](https://www.cato.org/commentary/original-sin-robert-bork)

Sep 9, 2020 — The Robert Bork nomination represents the moment when the scales fell from conservative eyes over what they perceived were unfair tactics in defeating a ...

[### Judge Robert H. Bork and Constitutional - Chicago Unbound

The University of Chicago

https://chicagounbound.uchicago.edu › viewcontent](https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=1016&context=uclrev_online)

PDF

by SG Calabresi · 2013 · Cited by 2 — Bork is well known as the father of originalism: the theory of constitutional interpretation that calls on judges to give the words of the Constitution the ...

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https://www.alternet.org/**2022/05**/scotus-blood-on-its-hands/

the court is about to take Second Amendment fundamentalism to a new and even more dangerous level.

If you're looking for someone or something to blame for the mass shootings that have left our schools, streets and communities soaked in blood, don't just point your finger at the deranged punks who pull the triggers, or the NRA and their lackeys in the Republican Party. Save at least some of your ire for the Supreme Court.

In 2008, the Supreme Court sold its soul to the gun lobby. In a 5-4 majority opinion written by the late Justice Antonin Scalia in District of Columbia v. Heller, the court held for the first time that the Second Amendment protects an individual right to own firearms.[cruz?]

Prior to Heller, the great weight of academic scholarship as well as the court’s 1939 decision in United States v. Miller had construed the Second Amendment, in keeping with the actual debates of the Constitutional Convention, asprotecting gun ownership only in connection with service in long-since antiquated state militias.

In 2010, the court again genuflected to the gun lobby. In another 5-4 opinion in McDonald v. Chicago, this time written by Justice Samuel Alito, the court extended Heller, holding that the individual right to keep and bear arms is “incorporated” by the Fourteenth Amendment’s Due Process Clause and is therefore applicable to the states and local governments.

The Second Amendment, as interpreted by Scalia and Alito, thus became the law of the land. The amendment has since been elevated in right-wing circles to the status of holy writ.

Both Heller and McDonald were based on the implausible and perverse judicial philosophy known as "originalism."

Originalism has led the court to enter a legal fantasy world in which the answers to contemporary questions about such matters as voting rights and gerrymandering, union organizing, the death penalty, abortion and gun control are to be found solely in the meaning that the Constitution had for the Founding Fathers in the late 18th Century.For originalists, the meaning of the Constitution is forever fixed, and can only be altered by constitutional amendments.

As a tool of judicial decision-making, originalism has been around a long time.One of its earliest expressions came in the *Dred Scott* case of 1857, perhaps the most odious decision ever issued by the Supreme Court, which held that Black Americans of African descent could never be U.S. Citizens. *Plessy v. Ferguson*, the 1896 decision that upheld the constitutionality of racial segregation even after the ratification of the 13th, 14th and 15th Amendments, is another originalist landmark.

When critics noted that the framers of the Constitution were a diverse group and that their actual intentions were varied and often ambiguous, proponents of the doctrine refined their approach. The current version—call it “new originalism”— focuses on the “original public meaning” of Constitutional provisions, which, they contend, can be ascertained from the recorded debates of the founding era and from such sources as late eighteenth-century dictionaries.

All originalists—whether of the old or new iteration—believe that their approach limits the subjectivity of judges and acts as a restraint on judicial activism.

In fact, originalism does nothing of the sort. As Fordham University history professor Saul Cornell, one of the foremost authorities on the history of the Second Amendment, noted in a scathing critique published in 2011 in Dissent magazine:

“[I]f one looks carefully at the murky methodology and dubious practices of new originalism, it is clear that its historical foundations are even shakier than that of old originalism. The new theory is little more than an intellectual shell game in which contemporary political preferences are shuffled around and made to appear part of the Constitution’s original meaning.”

The actual history of the Second Amendment is quite different from the fantasy versions advanced by Scalia and Alito. As the late Justice John Paul Stevens, joined by three of his colleagues, wrote for the minority in Heller:

“The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that thepower of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States.Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms.”

Although Heller and McDonald were the products of extreme rightwing judicial activism, they were technically limited in scope, as they dealt with the right to keep guns in the home. Ever since those cases were decided, however, the gun lobby has worked to bring a new test case to the Supreme Court to extend the right to bear arms beyond the home.

The lobby has finally found its vehicle in a new case--New York State Pistol Association v. Bruen-- that will be decided by the end of June, when the court completes its current term.

Bruenwas brought by two individuals and the state affiliate of the National Rifle Association to overturn a New York law that places limits on the issuance of concealed weapons permits to carry guns outside the home. Under New York’s regulatory scheme, people seeking such permits are required to demonstrate a special need for protection — “proper cause” in the words of the statute—to qualify. The NRA contends the law is unconstitutional.

After losing in the lower courts, the Bruen plaintiffs appealed to the Supreme Court, where they are likely to prevail. With the addition of three Trump appointees—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—conservatives now hold a solid 6-3 majority on the bench. No longer constrained by the need for caution and compromise, they are set to dramatically extend gun rights under the Second Amendment.

Originalism was front and center during the oral arguments the court heard in the case last November.

During the arguments, the Justices paid scant attention to the dire consequences of unleashing more guns on the streets and subways of present-day New York City. They instead peppered the attorneys for both sides with questions about the origins under Anglo-American law of the right to carry arms in public places. At several points in the two-hour session, the attorneys were asked to share their thoughts on whether the Statute of Northampton, an act of the English Parliament passed in 1328, banned the carrying of weapons other than by the king’s servants in fairs and markets.

The questioning would have made for an amusing Saturday Night Live or Monty Python skit, but this was no stand-up bit. Commenting on the oral arguments, Professor Cornell told the BBC it was “beyond ironic” that anyone would look to Medieval England for resolution of the case. "It just doesn't make any sense whatsoever to anyone who really understands the complexity of English history. Obviously, that doesn't include many people in the gun rights community or many people sitting on some courts in America."

Should the New York statute be declared unconstitutional, similar measures in California, New Jersey, Delaware, Hawaii, Maryland, Massachusetts, Connecticut, and elsewhere will likely fall, with dire and deadly consequences for public safety. Worse still, depending on the scope of the court's ruling, other gun-control laws on background checks and the sale of assault weapons and high-capacity magazines could become vulnerable to constitutional challenges.

The gun homicide rate in the United States is nearly eight times higher than the rate in Canada, and a whopping 100 times higher than in Britain. This year is shaping up to be particularly horrific. As of May 30, the United States had recorded 17,817 deaths from firearms, counting both suicides and unlawful killings, according to the Washington, D.C.-based Gun Violence Archive. We also had recorded 228 mass shootings (defined as an event involving four or more victims).

In any sane democracy, one might expect the highest court in the land to step in and do something to uphold sensible gun-control regulations when given the opportunity. But in fact, our Supreme Court is poised to do just the opposite. Keep that in mind when the next mass shooting inevitably occurs, perhaps in a neighborhood close to your own.

===

origin of IWF [trump, kavanaugh?]

**http://www.slate.com/articles/double_x/doublex/2016/04/clarence_thomas_female_supporters_in_the_iwf.html**

Confirmation Bias

:{:{}:

How “Women for Judge Thomas” turned into a conservative powerhouse.}:

By Barbara Spindel

clarence thomas anita hill.

Anita Hill’s televised testimony that Clarence Thomas sexually harassed her is credited for ushering in the Year of the Woman. But it also has another, less visible legacy.

Right on the heels of FX’s The People v. O.J. Simpson, the HBO film Confirmation offers another opportunity to relive a depressing ’90s spectacle—in this case, Clarence Thomas’ Supreme Court hearings. Anita Hill’s televised testimony that Thomas sexually harassed her, and her poor treatment at the hands of the all-male Senate Judiciary Committee, are often credited with raising awareness of the issue of workplace sexual harassment and ushering in the so-called Year of the Woman, the 1992 election of four women to the Senate. (Confirmation premieres April 16 and stars Scandal’s Kerry Washington as Hill and The Wire’s Wendell Pierce as Thomas.)

But the Thomas hearings have another, less visible legacy. A small group of prominent Washington women rallied around the nominee; they were headed by the late Ricky Silberman, a friend of Thomas’ who, like Hill, had worked with him at the Equal Employment Opportunity Commission. Calling themselves Women for Judge Thomas, they pointedly demonstrated that not all women, simply by virtue of their sex, were ready to don an “I Believe Anita Hill” pin.This ad-hoc bunch—which included Anita Blair, Barbara Ledeen, and the late Barbara Olson—went on to form the Independent Women’s Forum, a D.C. nonprofit devoted to waging war on mainstream feminism.

[Stills of Kerry Washington and Wendell Pierce in Confirmation.

Kerry Washington as Anita Hill and Wendell Pierce as Clarence Thomas in Confirmation.]

Back in the 1970s, Phyllis Schlafly and her allies had whipped up fears of unisex public bathrooms and female military conscription in order to help kill the Equal Rights Amendment. After that, groups such as Schlafly’s Eagle Forum and Beverly LaHaye’s Concerned Women for America railed against reproductive rights and gay rights and championed traditional gender roles. But among conservative women’s groups, the IWF was something new. If you squinted, its members—enterprising, educated professionals—looked like they could belong to the National Organization for Women. Instead, they had an extreme loathing for the feminist movement.

The IWF argued that second-wave feminism had solved the problem of sex discrimination. In a 1997 interview with now-defunct conservative magazine Insight, Blair, who was by then IWF president, said that current feminists were “playing out their own Freudian drama on the policy stage, saying, ‘Well, my first husband walked out on me, or I never had dates in high school, so all men are bad.’ ” A 1997 IWF press release called National Pay Inequity Awareness Day “a cruel hoax … designed to brainwash girls and young women into believing that they are victims.”

The IWF’s Elizabeth Larson, in the organization’s Women’s Quarterly magazine, called sexual harassment an issue drummed up by “a growing number of women, many spurred on by Anita Hill’s example … [who] find it more profitable to litigate than to work.”After the 1994 passage of the Violence Against Women Act—spearheaded by then-Sen. Joe Biden in what was widely seen as atonement for his mishandling of the Thomas hearings—the IWF argued that the legislation should be repealed or receive zero funding; IWF spokeswoman (and ’90s right-wing It Girl) Laura Ingraham referred to VAWA as feminist “pork” with a “tear-jerker” title. The group also took on affirmative action, headlining a Women’s Quarterly article on the topic “That’s No White Male, That’s My Husband”—a phrase that revealed a lot about IWF constituents’ racial identities and loyalties. (“You can’t have white guys saying you don’t need affirmative action,” Ledeen told the Washington Post when asked why the anti-feminist IWF had organized as women in the first place.)

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[Laura Ingraham appears with Sen. George Allen at a fundraiser on Oct. 7, 2006, in Maidens, Virginia.

In 1995, NOW President Patricia Ireland, in a considerable understatement, called it “a little startling” that the new and tiny conservative upstart IWF, with fewer than 2,000 members, was garnering media coverage to rival that of Ireland’s mass-membership organization. It surely helped that stalwart right-wing donors including Richard Scaife and the Koch brothers were funding the IWF, and that its well-connected roster included former National Endowment for the Humanities chairwoman (and wife of Dick Cheney) Lynne Cheney,Who Stole Feminism? authorChristina Hoff Sommers, neoconservative writer (and wife of Norman Podhoretz) Midge Decter, and Wendy Lee Gramm and Mary Ellen Bork, married, respectively, to Texas Sen. Phil Gramm and rejected Supreme Court nominee Robert Bork.

Hill was often dismissed as overreacting to a joke about a pubic hair on a Coke can.

While much of the IWF’s campaign against feminism was waged in the media, the group also took the fight to Capitol Hill; the IWF testified before Congress against the Violence Against Women Act and affirmative action, and filed amicus briefs opposing the enforcement of Title IX and the coeducation of the Virginia Military Institute.

After the election of George W. Bush, the IWF’s clout grew as its members received posts within the new administration, among them Elaine Chao as labor secretary, Diana Furchtgott-Roth as chief of staff of the White House Council of Economic Advisers, and Blair as deputy assistant secretary of the Navy. Most absurdly, twoIWF members, then-president Nancy Pfotenhauerand board member Margot Hill, were appointed to the administration’s National Advisory Committee on Violence Against Women.

Despite engaging in serious business, the IWF’s spokeswomen never appeared to take themselves too seriously; they loved to bait feminists but always with a smile. Blair said, “There’s a telltale way to find a liberal feminist: It’s the nasty wrinkles around her mouth that she gets from frowning. You’ll probably find my side with laugh lines.” “We have no angry agenda,” Grace Paine Terzian, then publisher of Women’s Quarterly, told a journalist in 1995. When Wendy Kaminer wrote on right-wing challenges to feminism in the American Prospect the following year, the IWF’s Elizabeth Lurie responded in a letter to the editor that she had found the piece “howlingly funny.” All of this forced cheer was intended to highlight the contrast between the IWF’s anti-feminism and its caricatured version of feminism, which, according toHoff Sommers in a 1996 60 Minutes profile of the IWF, had come to mean “that you’re chronically offended, that you’re looking for oppression and bias under every tree.”

Plenty of people still see Hill as fitting this description, even 25 years after the Thomas hearings. Although she accused Thomas of repeated graphic descriptions of pornographic films, including scenes of rape and bestiality, and of detailed boasts about his own sexual prowess, Hill was and is often dismissed as overreacting to a joke about a pubic hair on a Coke can. Indeed, IWF managing director Carrie Lukas recently described Hill’s allegations against Thomas as “rather PG-rated.”

Of course, the IWF exists not because its founders thought Hill was overreacting but because, as friends of Thomas, they thought she was lying. In the years since—when downplaying the existence and impact of sex discrimination and of gender-based crimes such as harassment, rape, and domestic violence—the IWF doesn’t suggest that all women are lying. The group has frequently suggested, however, that women who speak out about these issues are whining, and should stop playing the victim, and ought to pull themselves up by their bootstraps. In that sense the IWF, whose current mission is to “improve the lives of Americans byincreasing the number of women who value free markets and personal liberty,” has ties to Thomas that are not merely personal but philosophical as well.

The women of the IWF continue to stand by Clarence Thomas, and he by them. After Silberman’s 2007 death, Thomas sat down with the group’s Michelle Bernard and Charlotte Hays to talk about his friend for the IWF newsletter. “Sometimes at IWF we are accused of being anti-women and anti-feminist, because our mantra is that all issues are women’s issues,” his interviewers noted. “I wouldn’t worry about that too much,” Thomas responded, proceeding to describe his own experiences being called “traitor” and “Uncle Tom.” “When I am criticized, I take it as a compliment,” he said. “If I weren’t relevant, they wouldn’t talk about me. Don’t worry about it. You just wish them good health and do it with a smile.”

----

hubby cath convert]

mary Ellen Bork is a freelance writer and lecturer on issues affecting Catholic life and culture. She serves on the Advisory Board of the School of Philosophy, Catholic University of America, and Christendom College. She is on the Susan B. Anthony List, and the Chesterton Review. For several years she has facilitated groups studying Pope John Paul II’s theology of the body. She is doing research on Catholic leaders during the English Reformation and sixteenth century Catholic religious leaders. Her articles appear in the National Catholic Register, The Washington Times, Voices, and The New Criterion.

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Passing on What We Have Learned: An Interview with Mary Ellen Bork Feb 13, 2019 Mary Ellen Bork is the wife of the late Judge Robert Bork and has served on the college's Advisory Board for nearly 20 years. Mrs. Bork is a freelance writer and lecturer on issues of Catholic life and culture.

https://thefederalist.com › 2020 › 09 › 29 › bork-widow-biden-orchestrated-a-vicious-lying-assault-a-man-without-a-compass-guided-now-by-prevailing-progressive-winds

Bork Widow: Biden 'Orchestrated A Vicious Lying Assault," A "Man ...

Sep 29, 2020Mary Ellen Bork, the widow to the late federal Judge Robert Bork, wrote a response to an article in the Wall Street Journal reminding readers of Democratic presidential nominee Joe Biden's role in...

===

https://boingboing.net/2019/09/06/new-gilded-age-2.html

If you know the name Robert Bork, it's probably in the context of his failure to secure Senate confirmation when Ronald Regan put him up for the Supreme Court (his sins from his days in the Nixon administration caught up to him).

But Robert Bork's failure to attain a Supreme Court seat did nothing to erode his influence: indeed, Bork's work, more than anyone else's, is responsible for the new Gilded Age, with its inequality crisis, political instability, and looming environmental disaster. If the human race ends up extinct in a generation or two, Robert Bork will be high up in the list of people to blame for it.

Bork was a liar, who invented a fictional history of US anti-monopoly law in which the lawmakers who authored, debated and passed those laws didn't actually mind monopolies at all -- all they cared about was "consumer harm" (that is, the prices paid by the public rising in the short term after a company or handful of companies cornered their markets); and "collusion" (especially trade unions, consumer groups, and other checks on corporate power).

Bork's ideas were radioactively implausible, but they did have an important advantage in the "marketplace of ideas": they stood to make the richest people in America much, much richer, and so Bork found no shortage of corporate backerswho helped him create a network of judicial "education" programs, political campaigns, think tankies, and intellectually dishonest academics who would line up behind his idea. Every president since Reagan has expanded Bork's doctrine, allowing for even more aggressive market concentration, producing a country (and a world) where a handful of firms dominate virtually every industry, from telcoms to talent agencies:{, }:{ to }:eyewear:{, to }:Big Tech:{.}:

And while all this has made the 0.1% a lot richer, the major impact has been to increase the power of corporations over governments, at the expense of democratic control and transparency. Once firms are concentrated, they find it easier to agree on a common set of lobbying goals, and they have the excess capital ("monopoly rents") to spend on achieving those goals.

This corporate power was what animated the lawmakers who crafted US anti-monopoly laws: the corrupting influence of trusts and the robber-barons who ran them were seen as antithetical to good governance, national welfare, and widespread prosperity. Corporate concentration was a force for political destabilization and corruption, and the fact that this also meant higher prices was important, but not central, to US anti-monopoly policy.

Bork offered a radical reinterpretation of antitrust law. Inventing a legislative history out of whole cloth, he argued that Congress enacted the Sherman Act only to protect “consumer welfare” and not to control the broader economic and political power of corporations. Further, based on hypotheses with little or no empirical support, he asserted that mergers and trade restraints allowed businesses to lower costs and improve services and thereby benefit consumers.

Bork did believe in one antitrust prohibition. He argued that collusion among rivals should be aggressively prosecuted. His conception of collusion swept broadly and did not differentiate, for example, between pharmaceutical companies conspiring to raise prices on prescription drugs and public defenders banding together to obtain a living wage.

In the 1970s and 1980s, corporate attorneys, citing and quoting Bork on behalf of their clients, found increasingly receptive audiences in the federal courts and agencies. The Supreme Court, starting in the Nixon years, and the Department of Justice and Federal Trade Commission, beginning with Reagan, were eager to read the theories of Bork into case law and policy. (In 1982, Reagan appointed Bork as a court of appeals judge and gave him the opportunity to directly rewrite antitrust doctrine.) For instance, in a 1979 decision, the Supreme Court, quoting Bork’s Antitrust Paradox and relying on his fabricated account of congressional intent, stated “Congress designed the Sherman Act as a ‘consumer welfare prescription.’”

Bork’s intellectual clout reflected a larger shift in judicial philosophy during the period. The big business-funded law and economics movement preached a particular brand of economic theory (aligned with Bork’s) through judicial training programs. They persuaded federal judges to protect the privileges of the wealthy and large corporations.

How Robert Bork Fathered the New Gilded Age[Sandeep Vaheesan/Promarket]

(via Naked Capitalism)

/ / 9 COMMENTS

BORK BORK BORK / BORKED / CHRIST WHAT AN ASSHOLE / CORPORATISM / GUILLOTINE WATCH / I HATE YOU RONALD REAGAN / INEQUALITY / LATE STAGE CAPITALISM / MONOPOLISM

On May 19, 1973, Cox took a leave of absence from Harvard Law School to accept appointment as the first Watergate special prosecutor. Cox's appointment was a key condition set by the leadership of the U.S. Senate for the confirmation of Elliot Richardson as the new attorney general of the United States, succeeding Richard G. Kleindienst, who had resigned during the spring of 1973, as a result of the Watergate scandal. That summer, Cox learned with the rest of America about the secret taping system installed in the White House on orders from President Richard M. Nixon. During the next few months, Cox, the United States Senate Watergate Committee, and U.S. District Judge John J. Sirica struggled with the Nixon Administration over whether Nixon could be compelled to yield those tapes in response to a grand jury subpoena. When Sirica ordered Nixon to comply with the committee's and Cox's demands, the President offered Cox a compromise: instead of producing the tapes, he would allow the Senator John Stennis (a Democrat from Mississippi) to listen to the tapes, with the help of a transcript prepared for him by the White House, and Stennis would then prepare summaries of the tapes' contents. Cox rejected this compromise on Friday, October 19, 1973. On Saturday, October 20, 1973, Cox held a press conference to explain his decision.

That evening, in an event dubbed the Saturday Night Massacre by journalists, President Nixon ordered Attorney General Elliot Richardson to dismiss Cox.^[4] Rather than comply with this order, Attorney General Richardson resigned, leaving his second-in-command, Deputy Attorney General William Ruckelshaus in charge of the Justice Department. Ruckelshaus likewise refused to dismiss Cox, and he, too, resigned. These resignations left Solicitor General Robert Bork as the highest-ranking member of the Justice Department; insisting that he believed the decision unwise but also that somebody had to obey the president's orders, Bork dismissed Cox. Bork also considered submitting his resignation, but Richardson and Ruckelshaus dissuaded him from resigning, arguing that Bork had to remain in office to ensure continuity of the administration of the Justice Department. Upon being dismissed, Cox stated, "whether ours shall be a government of laws and not of men is now for Congress and ultimately the American people to decide." His successor as special prosecutor was Leon Jaworski, named by Bork.

The dismissal of Cox suggested the use of independent counsel, prosecutors specifically appointed to investigate official misconduct. Ultimately, Congress enacted a law to provide for a procedure appointing independent counsels, a statute that the U.S. Supreme Court upheld in 1986. This statute, which had an expiration date inserted on its original enactment, expired without renewal.

Ultimately, on August 8, 1974, after the U.S. Supreme Court voted by 8 to 0 to reject Nixon's claims of executive privilege and release the tapes (with then Associate Justice William H. Rehnquist

recusing himself because, as an assistant attorney general during Nixon's first term, he had taken part in internal executive-branch discussions of the scope of executive privilege), Nixon announced his decision to resign as President.

===

"Saturday Night Massacre":{:(style="margin-right:0px;margin-left:0px"):}:[edit:{]}:

On October 20, 1973, Solicitor General Bork was instrumental in the "Saturday Night Massacre", U.S. President Richard Nixon's firing of Watergate Special Prosecutor Archibald Cox, following Cox's request for tapes of his Oval Office conversations. Nixon initially ordered U.S. Attorney General, Elliot Richardson, to fire Cox. Richardson resigned rather than carry out the order. Richardson's top deputy, Deputy Attorney General William Ruckelshaus, also considered the order "fundamentally wrong"^[15] and also resigned, making Bork the Acting Attorney General. When Nixon reiterated his order, Bork complied and fired Cox, an act found illegal in November of that year in a suit brought by **:{Ralph Nader}:**. The Justice Department did not appeal the ruling, and because Cox indicated that he did not want his job back, the issue was considered moot.^[15]Bork remained Acting Attorney General until the appointment of William B. Saxbe on January 4, 1974.^[16]

In his posthumously published memoirs, Bork stated that following the firings, Nixon promised him the next seat on the Supreme Court. Nixon was unable to carry out the promise after resigning in the wake of theWatergate scandal, but eventually, in 1987, Ronald Reagan nominated Bork for the Supreme Court.^[17]

Most people, if they think of the recently departed and extremely conservative Judge Robert Bork at all, think of his failed nomination by President Ronald Reagan to the Supreme Court (and maybe his natty facial hair). But Robert Bork deserves credit for more than just inspiring the term “Borked.” He actually deserves credit (or, more accurately, blame) for the domination of our food system by a handful of mammoth corporations. I’m talking about you, Monsanto, Cargill, Tyson, and Walmart.

As we noted last month, farmers feel the brunt of his legacy:

According to a 2007 study [PDF] from the University of Missouri, the four largest companies controlled 82 percent of the beef packing industry, 85 percent of soybean processing, 63 percent of pork packing, and 53 percent of broiler chicken processing. In fact, so much consolidation has taken place throughout the food chain that it can be difficult for any one person to fathom the true effects.

But consumers experience it, too. Walmart now earns one out of every four dollars Americans spend on groceries and controls 50 percent of the grocery sales in some cities.

What exactly does Robert Bork have to do with any of this? According to an interview in the Washington Post’s Wonkblog with legal scholar Barak Orbach of the University of Arizona,Bork is considered the father of modern antitrust law, whose influence, Orbach says, he “cannot overstate.” Orbach observes that it was Bork’s legal work in the 1960s that transformed the way the government looked at monopolies and mergers, and led directly to the rise of the mega-corporations that dominate industry after industry.

His main “innovation” was the inclusion of the concept of “consumer welfare” in any evaluation of a potential antitrust violation. In short, he believed that if the consumer benefited from the monopoly, through, say, low prices, then there probably was no antitrust violation. What made this radical was that before Bork, big businesses were considered an inherent threat to small business — the legal term was “inhospitality” — and antitrust regulators wouldn’t consider any potential benefit of consolidation.

As Orbach explains to Wonkblog, Bork saw this assumption that all big business was bad as a one-way ticket to socialism. It was the middle of the Cold War, after all:

He said the Russians were about to take over, through antitrust! In 1963 he wrote an article in Fortune called, “The Crisis in Antitrust,” and he, in that article, he’s describing the socialists who threatened free market forces. It wasn’t too far-fetched if you think about it. If you think antitrust is used to suppress competition, then this is a suppression of the American spirit, of entrepreneurship, of free markets. Who does these things? Socialists.

Sigh.

What Bork did was incorporate the “new” economic theory developed at the University of Chicago (aka “the Chicago School”) — which said the free market was the best means to allocate resources in society, rather than government regulators or Congress — into antitrust law. And if the goal of any analysis of a proposed corporate merger or acquisition was “consumer welfare” instead of protecting small businesses, well, it was a small jump to allowing pretty much every merger and acquisition that came down the pike, since they often led to lower prices and increased “efficiency” in the industries at hand.

He was also influential in convincing judges and the government that “vertical” integration, i.e. the way a company attempts to control its entire production chain, was not inherently anti-competitive. Before Bork, deals and mergers that accomplished this kind of thing were rejected outright by judges. Now, such agreements dominate the landscape — a good example being the harsh and heavily restrictive contracts that poultry processors like Tyson and Purdue are able to foist on chicken farmers.

It was Bork’s legacy that led Obama’s antitrust team to realize there was little they could do to attack current monopolists like Monsanto or beef packers without new laws. (I discussed the pullback of Obama’s antitrust enforcement in the food industry last month.)

Nothing is simple, of course. And Orbach observes that Bork’s work did lead to big benefits to consumers — he mentions telecom, finance, and e-commerce as industries that would be much less consumer-friendly today if not for him. But he doesn’t mention the fact Bork also transformed the American table.

Bork’s work also gave us cheap meat and dairy as well as massive quantities of processed food sold at at heavily discounting supermarkets. Some of this was likely inevitable. But Bork was the one to link economics to antitrust and make consumer welfare the primary goal. Maybe some other jurists would have provided a similar legal framework eventually. But without his extremely conservative approach, the antitrust pendulum might not have swung quite so far. At this point, it will take major legislation by Congress to move it back.

Liberals in the ’80s believed that America had successfully dodged judicial and legal disaster when Senate Democrats kept Bork off the Supreme Court. But it turns out the damage had already been done.

http://grist.org/food/dont-like-todays-food-monopolies-blame-robert-bork/

Tom Laskawy is a founder and executive director of the Food & Environment Reporting Network and a contributing writer at Grist covering food and agricultural policy. His writing has also appeared in The American Prospect, Slate, The New York Times, and The New Republic. Follow him on T

poker buddy with rehnquist and Scalia hunt 262

advised goldwater to vote no on CR act; as SC clerk wrote memo that Plessy (sep but =) shd be upheld;(perelstein page 363) BG got 2nd op from Bork, who wrote 75 pp brief that the question was not of civil rights but the freedom to assoc w/ whomerver (or not) [somebody argued it came down to taste?]

bif on exec power

On October 20, 1973 Solicitor General Bork was instrumental in the "Saturday Night Massacre", U.S. President Richard Nixon's firing of Watergate Special Prosecutor Archibald Cox, following Cox's request for tapes of his Oval Office conversations. Nixon initially ordered U.S. Attorney General, Elliot Richardson, to fire Cox. Richardson resigned rather than carry out the order. Deputy Attorney General William Ruckelshaus considered the order "fundamentally wrong"^[10] and also resigned, making Bork acting Attorney General. When Nixon reiterated his order, Bork complied and fired Cox. He remained acting Attorney General until the appointment of William B. Saxbe on December 17, 1973.

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son in PR, dtr ellen bork pnac

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Robert Heron Bork was born March 1, 1927 is a conservative American legal scholar who advocates the judicial philosophy of originalism. Bork formerly served as Solicitor General, acting Attorney General, and circuit judge for United States Court of Appeals. In 1987, he was nominated to the Supreme Court of the United States by President Ronald Reagan, but he was not confirmed by the Senate. Currently, Bork is a lawyer, law professor, author, and fellow at several prominent conservative organizations.

He has a daughter, Ellen **Bork** and, a son, Robert H. **Bork**, Jr., who specializes in public relations, particularly for attorneys.

Bork and tobacco

Robert Bork has been a defender of tobacco industry interests.

In 1994, around the time of the Waxman Congressional hearings on tobacco, Judge Robert Bork represented the Brown & Williamson tobacco company.^[1]

References

â Brown & Williamson Tobacco Company COMMUNIQUE News of immediate interest May 20, 1994 B&W Pledges Full Cooperation To Congressional Subcommittee Press release. May 20, 1994. Bates No. 689647168

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wsoc

At the same time, Olson was working closely with the Paula

Jones lawyers. In early 1997 he and Robert Bork held a

moot court--a mock trial proceeding--to help prepare the

Jones lawyers for their arguments before the Supreme

Court, which culminated in the ruling which cleared the

way to compelling Clinton to give deposition testimony

about his sex life.

---

Robert Heron Bork (born March 1, 1927) is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit. In 1987, he was nominated to the Supreme Court by President Ronald Reagan, but the Senate rejected his nomination. Bork had more success as an antitrust scholar, where his once-idiosyncratic view that antitrust law should focus on maximizing consumer welfare has come to dominate American legal thinking on the subject.^[1] Currently, Bork is a lawyer, law professor, and bestselling author.

Contents[hide]

[edit] Early career and family

Bork was born in Pittsburgh, Pennsylvania. His father was Harry Philip Bork (1897â1974), a steel company purchasing agent, and his mother was Elisabeth Kunkle (1898â2004), a schoolteacher. He was married to Claire Davidson from 1952 until 1980, when she died of cancer. They had a daughter, Ellen, and two sons, Robert and Charles. In 1982 he married Mary Ellen Pohl,^[2] a Roman Catholic religious sister turned activist.^[3]

Bork attended the Hotchkiss School in Lakeville, Connecticut^[4] and earned bachelor's and law degrees from the University of Chicago. While pursuing his bachelor's degree he became a brother of the international social fraternity of Phi Gamma Delta. While pursuing his law degree he served on Law Review. At UC he was awarded a Phi Beta Kappa key with his law degree in 1953 and passed the bar in Illinois that same year. After a period of service in the United States Marine Corps, Bork began as a lawyer in private practice in 1954 and then was a professor at Yale Law School from 1962 to 1975 and 1977 to 1981. Among his students during this time were Bill Clinton, Hillary Rodham Clinton, Anita Hill, Robert Reich, Jerry Brown and John R. Bolton.^[5][6]

[edit] Advocacy of originalism

Bork is best known for his theory that the only way to reconcile the role of the judiciary in the U.S. government against what he terms the "Madisonian" or "counter-majoritarian" dilemma of the judiciary making law without popular approval is for constitutional adjudication to be guided by the framers' original understanding of the United States Constitution. Reiterating that it is a court's task to adjudicate and not to "legislate from the bench," he has advocated that judges exercise restraint in deciding cases, emphasizing that the role of the courts is to frame "neutral principles" (a term borrowed from Herbert Wechsler) and not simply ad hoc pronouncements or subjective value judgments. Bork once said, "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else."^[7]

Bork built on the influential critiques of the Warren Court authored by Alexander Bickel, who criticized the Supreme Court under Warren for shoddy and inconsistent reasoning, undue activism, and misuse of historical materials. Bork's critique was harder-edged than Bickel's, however, and he has written, "We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own." Bork's writings have influenced the opinions of conservative judges such as Associate Justice Antonin Scalia and former Chief Justice William Rehnquist of the U.S. Supreme Court, and sparked a vigorous debate within legal academia about how the Constitution is to be interpreted.

[edit] Antitrust scholar

At Yale, he was best known for writing The Antitrust Paradox, a book in which he argued that consumers were often beneficiaries of corporate mergers, and that many then-current readings of the antitrust laws were economically irrational and hurt consumers. Bork's writings on antitrust law, along with those of Richard Posner and other law and economics and Chicago School thinkers, were heavily influential in causing a shift in the U.S. Supreme Court's approach to antitrust laws since the 1970s.^[8][9]

[edit] Solicitor General

Bork served as Solicitor General in the U.S. Department of Justice from June 1973 to 1977. As Solicitor General, Bork argued several high profile cases before the Supreme Court in the 1970s, including 1974's Milliken v. Bradley, where Bork's brief in support of the State of Michigan was influential among the justices. Chief Justice Warren Burger called Bork the most effective counsel to appear before the Court during his tenure. Bork hired many young attorneys as Assistants who went on to have remarkable careers, including Judges Danny Boggs and Frank H. Easterbrook as well as Robert Reich, later President Bill Clinton's Secretary of Labor.

[edit] Circuit Judge

Bork was a circuit judge for the United States Court of Appeals for the District of Columbia Circuit between 1982 and 1988. He was nominated by President Reagan on December 7, 1981, was confirmed by the Senate on February 8, 1982, and received his commission on February 9, 1982.

One of his opinions while on the D.C. Circuit was Dronenburg v. Zech, 741 F.2d 1388, decided in 1984. This case involved James L. Dronenburg, a sailor who had been administratively discharged from the Navy for engaging in homosexual conduct. Dronenburg argued that his discharge violated his right to privacy. This argument was rejected in an opinion written by Bork and joined by (now U.S. Supreme Court Justice) Antonin Scalia, in which Bork critiqued the line of Supreme Court cases upholding a right to privacy. In rejecting Dronenburg's suggestion for a rehearing en banc, the D.C. Circuit issued four separate opinions, including one by Bork (again joined by Justice Scalia), who wrote: "no principle had been articulated [by the Supreme Court] that enabled us to determine whether appellant's case fell within or without that principle."^[11]

[edit] Supreme Court nomination

Main article: Robert Bork Supreme Court nomina

President Reagan nominated Bork for Associate Justice of the Supreme Court on July 1, 1987. A hotly contested United States Senate debate over Bork's nomination ensued. Opposition was partly fueled by strong opposition by civil and women's rights groups concerned with Bork's opposition to the authority claimed by the federal government to impose standards of voting fairness upon the states (at his confirmation hearings for the position of Solicitor General, he supported the rights of Southern states to impose a poll tax),^[12] and his stated desire to roll back civil rights decisions of the Warren and Burger courts. Bork is one of only three Supreme Court nominees to ever be opposed by the American Civil Liberties Union, along with William Rehnquist and Samuel Alito.^[13] Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy",^[10] which his role in the Saturday Night Massacre exemplified according to his critics.

Supreme Court Justice Lewis Powell was a moderate, and even before his expected retirement on June 27, 1987, some Senate Democrats had asked liberal leaders to form "a solid phalanx" to oppose whomever President Ronald Reagan nominated to replace him, assuming it would tilt the court rightward[citation ^needed]. Democrats also warned Reagan there would be a fight if Bork were nominated.^[14] Nevertheless, Reagan nominated Bork for the seat on July 1, 1987.

Following Bork's nomination to the Court, Sen. Ted Kennedy took to the Senate floor with a strong condemnation of Bork declaring:

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 isâand is often the onlyâprotector 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.^[15][16]

Bork responded, "There was not a line in that speech that was accurate.",^[17] and in an obituary of Kennedy, The Economist remarked that Bork may well have been correct, "but it worked."^[17] Bork also contended in his best-selling^[18] book, The Tempting of America, that the brief prepared for Sen. Joe Biden, head of the Senate Judiciary Committee, "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility."^[19]

TV ads narrated by Gregory Peck attacked Bork as an extremist. Kennedy's speech successfully fueled widespread public skepticism of Bork's nomination. The rapid response to Kennedy's "Robert Bork's America" speech stunned the Reagan White House, and the accusations went unanswered for 2Â½ months.^[20]

During debate over his nomination, Bork's video rental history was leaked to the press. His video rental history was unremarkable, and included such harmless titles as A Day at the Races, Ruthless People, and The Man Who Knew Too Much. Writer Michael Dolan, who obtained a copy of the hand-written list of rentals, wrote about it for the Washington City Paper.^[21] Dolan justified accessing the list on the ground that Bork himself had stated that Americans only had such privacy rights as afforded them by direct legislation. The incident led to the enactment of the 1988 Video Privacy Protection Act.

To pro-choice legal groups, Bork's originalist views and his belief that the Constitution does not contain a general "right to privacy" were viewed as a clear signal that, should he become a Justice on the Supreme Court, he would vote to reverse the Court's 1973 decision in Roe v. Wade. Accordingly, a large number of groups mobilized to press for Bork's rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle. Bork was faulted for his bluntness before the committee, including his criticism of the reasoning underlying Roe v. Wade.

On October 23, 1987, the Senate rejected Bork's confirmation, with 42 Senators voting in favor and 58 voting against. Two Democratic Senators David Boren (D-OK) and Ernest Hollings (D-SC) voted in his favor, with 6 Republican Senators John Chafee (R-RI), Bob Packwood (R-OR), Arlen Specter (then R-PA), Robert Stafford (R-VT), John Warner (R-VA) and Lowell P. Weicker, Jr. (R-CT) all voting nay.

The vacant seat on the court to which Bork was nominated eventually went to Judge Anthony Kennedy who was unanimously approved by the Senate, 97-0.

Bork, unhappy with his treatment in the nomination process, resigned his appellate-court judgeship in 1988.

[edit] Bork as verb

According to columnist William Safire, the first published use of bork as a verb was "possibly" The Atlanta Journal-Constitution of August 20, 1987. Safire defines to bork by reference "to the way Democrats savaged Ronald Reagan's nominee, the Appeals Court judge Robert H. Bork, the year before."^[22] Perhaps the best known use of the verb to bork occurred in July 1991 at a conference of the National Organization for Women in New York City. Feminist Florynce Kennedy addressed the conference on the importance of defeating the nomination of Clarence Thomas to the U.S. Supreme Court. She said, "We're going to bork him. We're going to kill him politically ... This little creep, where did he come from?"^[23] Thomas was subsequently confirmed after one of the most divisive confirmation hearings in Supreme Court history.

In March 2002, the Oxford English Dictionary added an entry for the verb Bork as U.S. political slang, with this definition: "To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way."^[24]

[edit] Recent work

Following his failure to be confirmed, Bork resigned his seat on the U.S. Court of Appeals for the D.C. Circuit and was for several years a senior fellow at the American Enterprise Institute for Public Policy Research, a conservative think tank. Bork also consulted for Netscape in the Microsoft litigation. Bork is currently a fellow at the Hudson Institute. He served as a visiting professor at the University of Richmond School of Law and is a professor at Ave Maria School of Law in Naples, FL.

[edit] Works and views

Bork has written several books, including the two best-sellers The Tempting of America, about his judicial philosophy and his nomination battle, and Slouching Towards Gomorrah: Modern Liberalism and American Decline, in which he argues that the rise of the New Left in the 1960s in the U.S. has undermined the moral standards necessary for civil society, and spawned a generation of intellectuals who oppose Western civilization.

In The Tempting of America (page 82), Bork explained his support for the Supreme Court's desegregation decision in Brown v. Board of Education:

By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases . . . The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.

In 1999, Bork wrote an essay about Thomas More and attacked jury nullification as a "pernicious practice".^[25]

In 2003, he published Coercing Virtue: The Worldwide Rule Of Judges, an American Enterprise Institute book which includes Bork's philosophical objections to the alleged phenomenon of incorporating international ethical and legal guidelines into the fabric of domestic law. In particular, he focuses on the problems he sees as inherent in the federal judiciary of three nations, Israel, Canada, and the United States, countries where he believes the courts have grossly exceeded their discretionary powers, and which have discarded precedent and common law, and in their place substituted their own liberal judgment.

Bork also advocates a modification to the Constitution that would allow Congressional super-majorities to override Supreme Court decisions, similar to the Canadian notwithstanding clause. Though Bork has many moderate critics, some of his arguments have earned criticism from conservatives as well. Although an opponent of gun control,^[26] Bork has denounced what he calls the "NRA view" of the Second Amendment, something he describes as the "belief that the constitution guarantees a right to Teflon-coated bullets." Instead, he has argued that the Second Amendment merely guarantees a right to participate in a government militia.^[27]

Bork converted to Catholicism in 2003.^[28]

In October 2005, Bork publicly criticized the nomination of Harriet Miers to the Supreme Court.^[29][30]

On June 6, 2007, Bork filed suit in federal court in New York City against the Yale Club over an incident that had occurred a year earlier. Bork alleged that, while trying to reach the dais to speak at an event, he fell, because of the Yale Club's failure to provide any steps or handrail between the floor and the dais.^[31] According to the complaint, Bork's injuries required surgery, immobilized him for months, forced him to use a cane, and left him with a limp.^[32] In May, 2008, Bork and the Yale Club reached a confidential, out-of-court settlement.^[33]

On June 7, 2007, Bork with several others authored an amicus brief on behalf of Scooter Libby arguing that there was a substantial constitutional question regarding the appointment of the prosecutor in the case, reviving the debate that had previously resulted in the Morrison v. Olson decision.^[34]

On December 15, 2007, Bork endorsed Mitt Romney for President.

A 2008 issue of the Harvard Journal of Law and Public Policy collected essays in tribute to Bork. Authors included Frank H. Easterbrook, George Priest, and Douglas Ginsburg.

[edit] In popular culture

The look of the character Judge Roy Snyder on The Simpsons is modeled on Robert Bork. The character judge is known for his lenient punishments.^[35]

[edit] Selected writings

Bork, Robert H. (1978). The Antitrust Paradox. New York: Free Press. ISBN 0-465-00369-9.
Bork, Robert H. (1990). The Tempting of America. New York: Free Press. ISBN 0-684-84337-4.
Bork, Robert H. (1993). The Antitrust Paradox (second edition). New York: Free Press. ISBN 0-02-904456-1.
Bork, Robert H. (1996). Slouching Towards Gomorrah: Modern Liberalism and American Decline. New York: ReganBooks. ISBN 0-06-039163-4.
Bork, Robert H. (2003). Coercing Virtue: The Worldwide Rule of Judges. Washington, D.C.: American Enterprise Institute Press. ISBN 0-8447-4162-0.
Bork, Robert H. (Ed.) (2005). A Country I Do Not Recognize: The Legal Assault On American Values. Stanford: Hoover Institution Press. ISBN 0-8179-4602-0.
Bork, Robert H. (2008) A Time to Speak: Selected Writings and Arguments. Wilmington, Del.: ISI Books. ISBN10/13: 1933859687 / 9781933859682

[edit] See also

[edit] References

Bronner, Ethan (2007). *Battle for Justice: How the Bork Nomination Shook America*. New York, New York, United States: Sterling. ISBN 140275227X. http://books.google.com/?id=VpFLtmfnRaMC
Vile, John R. (2003). *Great American Judges: An Encyclopedia*. Santa Barbara, California, United States: ABC-CLIO. ISBN 1576079899. http://books.google.com/?id=U6uJ-oWsZFYC

[edit] Notes

^ Frum, David (2000). How We Got Here: The '70s. New York, New York: Basic Books. p. 327. ISBN 0465041957
^ Vile 2003, p. 111
^ Beckwith, David (1987-09-21). "A Long and Winding Odyssey". Time. http://www.time.com/time/printout/0,8816,965540,00.html. Retrieved 2009-03-20.
^ Bronner 2007, p. 43
^ http://www.c-spanarchives.org/library/index.php?main_page=product_video_info&products_id=109864-1
^ http://www.newsmax.com/kessler/john_bolton/2007/11/05/46738.html
^ Dennis J. Goldford (2005). *The American Constitution and the Debate Over Originalism*. Cambridge University Press. p. 174. ISBN 9780521845588. http://books.google.com/?id=w9lFMxRsI7AC. Retrieved 2008-10-26
^ Gerhart, Peter M. (1982). "The Supreme Court and Antitrust Analysis: The (Near) Triumph of the Chicago School". The Supreme Court Review 1982: 319â349. http://www.jstor.org/stable/3109560:{ .}:
^ Fox, Eleanor M. (1987). "The Battle for the Soul of Antitrust". California Law Review 75 (3): 917â923. doi:10.2307/3480656. http://jstor.org/stable/3480656 .
^ ^a ^b Noble, Kenneth B. (July 26, 1987). "New Views Emerge of Bork's Role in Watergate Dismissals". The New York Times. http://query.nytimes.com/gst/fullpage.html?res=9B0DE2DE163FF935A15754C0A961948260&sec=&spon=&pagewanted=print. Retrieved 2009-09-30.
^ Dronenburg v. Zech, 746 F.2d 1579, 1582 (D.C. Cir. 1984).
^ New York Times 1987 October 23
^ "ACLU Opposes Nomination of Judge Alito". American Civil Liberties Union. Archived from the original on 2007-04-06. http://web.archive.org/web/20070406173742/http://www.aclu.org/scotus/alito/. Retrieved 2007-08-17.
^ Manuel Miranda (2005-08-24). "The Original Borking". Wall Street Journal. http://www.opinionjournal.com/nextjustice/?id=110007149. Retrieved 2007-08-10.
^ "34. The Bork Nomination". Eightiesclub.tripod.com. http://eightiesclub.tripod.com/id320.htm. Retrieved 2010-06-20.
^ Broder, John M. (August 27, 2009). "Edward M. Kennedy, Senate Stalwart, Is Dead at 77". The New York Times. http://www.nytimes.com/2009/08/27/us/politics/27kennedy.html. Retrieved April 10, 2010.
^ ^a ^b A hell of a senator, Lexington, The Economist, August 29, 2009.
^ "Robert H. Bork". Harper Collins. http://www.harpercollins.com/authors/1005/Robert_H_Bork/index.aspx. Retrieved 2008-10-26.
^ Damon W. Root (2008-09-09). "Straight Talk Slowdown". Reason. http://www.reason.com/news/show/128686.html. Retrieved 2008-10-26.
^ Gail Russell Chaddock (2005-07-07). "Court nominees will trigger rapid response". Christian Science Monitor. http://www.csmonitor.com/2005/0707/p02s01-uspo.html. Retrieved 2007-08-10.
^ "The Bork Tapes Saga". The American Porch. http://www.theamericanporch.com/bork2.htm. Retrieved 2007-08-17.
^ Safire, William (May 27, 2001). "On Language: The End of Minority". New York Times Magazine: p. 12. Document ID 383739671, ProQuest Historical Newspapers The New York Times (1851 - 2004) database. "judge fights 'borking' needed to stop court packing?"
^ John Fund (January 8, 2001). "The Borking Begins". The Wall Street Journal. http://opinionjournal.com/diary/?id=85000412. Retrieved August 17, 2007.
^ "Bork, v". Oxford English Dictionary Online. March 2002. http://dictionary.oed.com/cgi/entry/00308951?single=1&query_type=word&queryword=bork&first=1&max_to_show=10. Retrieved December 3, 2009.
^ "Thomas More for Our Season". Leadership U. http://www.leaderu.com/ftissues/ft9906/articles/bork.html. Retrieved 2007-08-17.
^ "Slouching Towards Gomorrah: Modern Liberalism and American Decline". The Mises Review. http://www.mises.org/misesreview_detail.aspx?control=22&sortorder=issue. Retrieved 2008-01-01.
^ Life Magazine, Vol 14, No. 13.
^ "Judge Bork Converts to the Catholic Faith". National Catholic Register. http://www.catholiceducation.org/articles/catholic_stories/cs0048.html. Retrieved 2007-08-17.
^ "Bush says Miers has experience, leadership". The Mercury News. Archived from the original on 2005-10-28. http://web.archive.org/web/20051028094759/http://www.mercurynews.com/mld/mercurynews/news/politics/12853325.htm. Retrieved 2007-08-17.
^ Robert H. Bork, "Slouching Towards Miers", Wall Street Journal, October 19, 2005, p. A12.
^ "Robert Bork Cites 'Wanton' Negligence in Suing Yale Club for $1-Million". The Chronicle of Higher Education. http://chronicle.com/news/article/2456/robert-bork-cites-wanton-negligence-in-suing-yale-club-for-1-million. Retrieved 2007-08-17.
^ "Robert H. Bork v. The Yale Club of New York City" (PDF). United States Court Southern District of New York. http://online.wsj.com/public/resources/documents/borksuit-060607.pdf. Retrieved 2007-08-17.
^ Zambito, Thomas (2008-05-09). ""Supreme nominee Bork settles Yale suit", ''New York Daily News'', May 10, 2008". Nydailynews.com. http://www.nydailynews.com/news/2008/05/10/2008-05-10_supreme_nominee_bork_settles_yale_suit.html. Retrieved 2010-06-20.
^ "United States of America v. Lewis Libby" (PDF). United States District Court for the District of Columbia. http://www.pegc.us/archive/US_v_Libby/amar_amicus_20070608.pdf. Retrieved 2007-08-17.
^ http://www.funtrivia.com/askft/Question77432.html

[edit] External links

Robert Bork at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
A Conversation with Judge Robert H. Bork - Event Video, Federalist Society, 2007-06-26
Congressional Record: Floor Vote on Bork Nomination
Think Tank Biography: Robert Bork
Bork, Robert H. (1996) Our Judicial Oligarchy . 1996 First Things November .