Thursday, November 03, 2005

Alito, Bork and Watergate...

National Review on-line has a must-read article this morning from Robert Bork, on the Alito nomination. A couple of the highlights:
...overturning Roe v. Wade should be the sine qua non of a respectable jurisprudence. Chief Justice Roberts and Justice Alito will hear a lot about stability in the law, the virtues of stare decisis, and the reliance many women have placed on that decision. The obtrusive fact is that constitutional law has never been stable. Precedent counts for less in constitutional law than elsewhere for the very good reason that the legislature can correct the Court’s mistake in interpreting a statute, but the Court is final when it invokes the Constitution and only the Court can correct its own mistakes...

...the justices should take note of the fact that Roe lies at the center of the bitter polarization of much of American society. In countries where the issue is decided democratically, no such intense animus exists. Compromises are worked out and each side knows that it is free to continue the public debate in hope of doing better next time. That was, and would be again, the case in America if the subject of abortion were returned to state legislatures and electorates. Overruling Roe would not, as some Democrats will claim, make abortion illegal, but merely the subject of democratic regulation...

...we do not know how the new chief justice and Justice-to-be Alito will rule on Roe and other liberal constitutional travesties of the past. Why, then, should conservatives support them? Because we can at least be sure that they will not start inventing yet new and previously unheard of constitutional rights. That would in itself be a vast improvement over the imperialistic Court majority’s drive to remake American culture and morality...

Bork is, of course, a brilliant man, and it remains a travesty (and a tragedy) that he's not seated on the Supreme Court instead of Anthony Kennedy, waiting to greet a Justice Alito as a colleague. For that we can thank Ted Kennedy. And Watergate...

At least I think so.

The beginning of the end of the Robert Bork nomination came less than an hour after it was announced, when Senator Edward Kennedy took to the floor of the Senate with an unprecedented bit of slander: "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, children could not be taught about evolution..." Kennedy set the tone for the debate, such as it was, and the Bork supporters were unprepared to deal with it. Before the defense could even begin, the storyline had been set, with the generous and, at the time, virtually unopposed, support of the mainstream media. The Bork nomination was doomed, almost before it began.

But where did the comments come from? How did a Senator take to the floor with such a vitriolic personal attack?

Because the Senator had prior personal animus. Animus that was, to the best of my recollection, never mentioned in the press.

On October 20, 1972, Robert Bork was the Solicitor General of the United States, the 3rd highest ranking official in the Nixon Justice Department. In what became known as the Saturday Night Massacre, President Nixon ordered Attorney General Elliot Richardson to fire Independent Prosecutor Archibald Cox, and Richardson refused, choosing to resign instead. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. Ruckelshaus also refused and resigned, leaving Bork as the highest ranking official remaining at Justice. When the order came to Bork, he also contemplated resignation, but Richardson and Ruckelshaus urged him not to, due to the chaos certain to ensue if the Department was left leaderless. Bork became acting Attorney General, and fired Cox.

What does that have to do with Ted Kennedy? Archibald Cox was a friend of the Kennedy family. He got his start in politics writing speeches for, and advising, Ted's brother, Senator John Kennedy, in the late 1950s. When Kennedy was elected to the Presidency, Archibald Cox served as Solicitor General in his Justice department. There was a pre-existing relationship between the Kennedy's and Archibald Cox, and had been for over a decade when Robert Bork fired him, at President Nixon's behest, in 1973. 14 years later, Senator Ted Kennedy, I believe, took a long-standing personal animus to the floor of the Senate...

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