Borking

In preparing for the coming Supreme Court nomination battle, Conservatives and Liberals alike are looking back to Reagan's rejected nomination of Robert Bork. Jonathan Chait explains:

The legend of Robert Bork's martyrdom casts a shadow over the coming Supreme Court nomination, as it has over every nomination for the last 18 years. Bork, for those who somehow haven't heard, was nominated in 1987 for the court, only to be defeated at the hands of a savage liberal attack painting him as an ultraconservative menace.

The point of these Bork references is that the Democrats conducted an unfair smear campaign against Bork; his image was defined by Ted Kennedy's quote that:

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters...

Obviously, this was a little bit over the top, but as Chait explains:

Bork had criticized the portion of the Civil Rights Act banning discrimination in public accommodations, argued against extending the equal protection of the 14th Amendment to women, took an extremely restrictive view of free speech, and so on. At the time of his nomination, Bork backed away from some of his most inflammatory writings, which made the accusations against him seem unfair. For instance, he reportedly told senators in his preconfirmation talks that he was willing to reconsider whether there is a constitutional right to abortion.

So, in short, Bork did have extremist views. And it was right that he was voted down. The really scary thing for this nomination is that the references to Borking in the context of Nomination '05 make sense, because many Republicans are clamoring for a nominee that acts like Bork. Here's the basic originalist contention, from Powerline:

Liberal judges tend to determine the meaning of the Constitution based on their policy preferences, and because those preferences often bear little relation to those of the Constitution's drafters, they rely on whatever they can get their hands on. It may be true that conservative judges often vote in support of their policy preferences too. But, as conservatives, their policy preferences are likely to reflect the traditional preferences and values that the authors of the Constitution believed in and set forth in the document.

But what are those mysterious preferences of the Constitution's drafters? Haven't we been battling about that since Hamilton and Jefferson fought about the National Bank in George Washington's cabinet? Of course, this is easily resolved for Originalists. All they need to know is that the Framers of the Constitution were English guys:

Though Jay's conditions have long been obsolete, until recently Americans did possess a large body of common moral assumptions rooted in our original Anglo-Protestant culture, and expressed in law. Now, however, a variety of disintegrating influences are undermining that unanimity, not least among them is the capture of constitutional law by an extreme liberationist philosophy. America is becoming a cacophony of voices proclaiming different, or no, truths.

I'll grant that our Constitution is distinctly Anglo, but it's also distinctly liberal. In fact, liberalism is distinctly Anglo. So how Bork gets the idea that the Framers would endorse an Anglo morality when in conflict with liberalism is pretty absurd. But it gets worse:

Justice Blackmun wanted to create a constitutional right to homosexual sodomy because of the asserted " 'moral fact' that a person belongs to himself and not others nor to society as a whole." Justice Kennedy, writing for six justices, did invent that right, declaring that "at the heart of [constitutional] liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

It's not really a "right to sodomy" or the "right to an abortion." The "right to an abortion" is really a right to privacy, which doesn't seem like much of a stretch, when you look at the Ninth Amendment, along with the liberal spirit of the Constitution.

The United States Constitution was written as and remains a liberal document. Imposing 200 year old Anglo morality on a plural society is a heinous violation of the Anglo liberal tradition of which the Constitution is part. Anyone who wants to do this, through Originalism or any other form of judicial extremism, deserves to be Borked.