I know it’s not considered polite to speak ill of the dead, but I’m going to bend that rule today to comment on Robert H. Bork, the former federal appeals court judge and failed Supreme Court candidate who died yesterday.
Those of you who have been with Americans United for a long time might recall that President Ronald W. Reagan nominated Bork to replace Justice Lewis Powell in the summer of 1987. Bork held extremely conservative – some might say reactionary – views, and the possibility of his elevation to the highest court in the land alarmed many groups.
So Bork opponents formed a coalition. Americans United was in the thick of the fight, and we noted that Bork’s views on separation of church and state were far out of the mainstream. Our allies at People For the American Way examined Bork’s speeches and writings and concluded in a report that he would “take a sledgehammer to the wall of separation between church and state.”
One anecdote is telling: During a 1985 appearance at the Brookings Institution, Bork was asked about his belief that government-sponsored school prayer is not a violation of the First Amendment. A Baptist minister told Bork about a Jewish friend who was uncomfortable because he was pressured to take part in Christian worship in public schools. Did Bork not see the problem here?
Apparently not. Bork’s reply was a flip, “So what? I’m sure he got over it.”
Religious Right groups were very enthusiastic over the possibility of Bork joining the high court. The Rev. Jerry Falwell said the Bork nomination “may be our last chance to influence this most important body.”
The Catholic League, the Heritage Foundation, Concerned Women for America, the Eagle Forum and other groups formed a pro-Bork caucus. The stage was set for a battle royal.
The atmosphere in the Senate grew heated at times. A defining moment came when U.S. Sen. Ted Kennedy (D-Mass.) stood on the Senate floor and delivered a speech titled “Robert Bork’s America.” In less than 500 words, Kennedy demolished the mask of moderation Reagan had tried to paste on Bork.
By the time Bork’s nomination came up for a vote On Oct. 23, 1987, the only question left was the margin of his defeat. It was 58-42.
After the vote, Reagan nominated Douglas H. Ginsburg, also a federal appeals court judge. But stories soon surfaced that Ginsburg had smoked marijuana in the 1960s and ‘70s, and this was enough to force his withdrawal.
The third time proved to be the charm for Reagan. He nominated Anthony M. Kennedy, a judge on the 9th U.S. Circuit Court of Appeals. Kennedy won confirmation easily and remains on the Supreme Court today.
Kennedy’s record on church-state separation has been decidedly mixed. Early in his tenure, he called for “substantial revision” of the high court’s church-state rulings. But he surprised everyone in 1992 by authoring a powerful opinion in Lee v. Weisman, which struck down coercive, school-sponsored prayers during graduation ceremonies.
Kennedy has also moderated his views on social issues over the years. In 2003, he wrote the majority opinion in Lawrence v. Texas, which invalidated a Texas law banning consensual same-sex acts between adults.
What are the chances Bork would have ruled this way? Less than slim. In his best-selling 1996 book Slouching Toward Gomorrah: Modern Liberalism and American Decline, Bork wrote, “If all traces of taint are removed, if homosexuality is made to seem completely normal, a matter of indifference to anyone else or to society, young men and women uncertain of their sexuality will be that much more likely to be drawn into a homosexual life.”
Kennedy is far from perfect – he supported private school vouchers in 2002’s Zelman v. Simmons-Harris – but he’s right at least some of the time. Bork would have been wrong every time. After he was rejected for a seat on the court, Bork grew increasingly bitter and adopted even more extreme views. I heard him speak at a few Religious Right gatherings. To be frank, his views were so far out on the fringe that he scared me.
Bork failed to understand the basic structure of American government. In Slouching Toward Gomorrah, Bork advocated amending the Constitution to allow a super-majority of Congress to nullify Supreme Court rulings. Imagine how that would have worked out in, say, 1954 in the wake of Brown v. Board of Education.
I’m sure there are people who loved Bork and are mourning his loss. My condolences to them. But his death should not prevent us from stating what has become obvious 25 years after the fact: The man was an extremist who did not belong on the Supreme Court.
The fact that Bork was kept off the court is a reminder of what advocates of church-state separation can do if they work together. Let’s keep it up.