It drove the right nuts when Ted Kennedy called out the racism and sexism in his legal views. But Kennedy was right
BY PAUL CAMPOS
Twenty-five years ago Ronald Reagan tried and failed to put Robert Bork on the Supreme Court. Movement conservatives reacted with remarkably durable outrage to this political defeat. To them, of course, this wasn’t a political defeat at all, but a fundamentally illegitimate “politicization” of the nomination process, enabled by supposed slanders aimed at one of the nation’s most distinguished legal scholars.
Bork had become accidentally like a martyr, and he cashed in, quite literally, on his supposed victim status, writing a couple of best-selling books decrying the moral degeneracy of contemporary America, and living large on what has been referred to indelicately as wingnut welfare.
This narrative was always a bunch of nonsense, and although de mortuis nil nisi bonum is a maxim of our profession, the memory of the deceased will not be spared here.
Bork’s nomination was defeated because over the course of his career he supported a number of legal positions that became, over time, extremely unpopular with the American public as a whole. For example, he defended the idea that states should be free to enforce Jim Crow laws, and opposed the Civil Rights Act of 1964 on the grounds that using federal law to dismantle the apartheid legal code of the post-Reconstruction South was both unconstitutional and morally wrong.
Unfortunately for him, by 1987 the idea that it was OK to use state violence to remove black people from segregated lunch counters wasn’t the kind of idea that was still acceptable in polite company.