First, on Bork, John Cook, the editor at Gawker wrote an obit entitled Robert Bork Was a Terrible Human Being and No One Should Grieve His Passing. The title is about the most restrained thing in the obit. Cook's ire is not directed so much at Bork's legacy as a judge (he was a judge on the United States Court of Appeals for the District of Columbia Circuit) but at his role in the the "Saturday Night Massacre", where he illegally fired Watergate Special Prosecutor Archibald Cox at the behest of President Richard Nixon, whom Cox was investigating. There's no question the firing was illegal (it was subsequently ruled to be illegal), and both U.S. Attorney General Elliot Richardson and his chief deputy William Ruckelshaus refused to carry out the deed and resigned before Bork did it. FBI agents then had Cox's office sealed (effectively allowing it to be sanitized of evidence against Nixon) -- FBI agents typically act at the direction of the US Attorney in such situations (who was then Bork), but I do not know if that was the case here.
Bork argued that (a) he was following orders, (b) a special prosecutor investigating the President was illegal (and so the firing order legal justified -- N.B. special prosecutor Cox was appointed by Richardson who had cleared it with the President), (c) both Richardson and Ruckelshaus urged him to follow the order to prevent a continued tumbling dominoes of resignations within the Justice Department, and, in this regard, (d) he was preventing unrest at the Justice Department (as if he did not do it someone else would have). Those rationalizations are easy to knock aside, though it is unclear to me whether Bork really believed any of them. As to the arguments about unrest and tumbling dominoes, as a political appointee and a top level official (Solicitor General, third in the Justice Department before the firings) Bork had an obligation to exercise the same principled stand as Richardson and Ruckelshaus. His refusal to take a colorable principled stand certainly had the effect of disqualifying him from consideration for a seat on the Supreme Court -- politics aside -- and rightly so. If he chose to fall on the sword, that was his choice.
There's no question that Bork's views were very conservative compared to most of the country's. He opposed desegregation in many instances and the "public accommodations" part of the Civil Rights Act, an odd view since he also railed against "judicial legislation" and "substantive due process" and invalidating the public accommodations would have turned on being a judicial activist using his view of substantive due process. He held an extreme view of "strict construction" of the Constitution that seems at odds with the intent of the framers of the Constitution (and has no purchase in its text), and by 1996, despite his avowed rejection of substantive due process, he was advocating natural law and claiming that the whole country was going to hell.
Meanwhile, former Supreme Court Justice William Rehnquist's "racist" legacy has raised its head. I put "racist" in scare quotes because it's a pejorative term -- is it earned in his case? It is possible that Rehnquist's views changed over his life. His life up to entry onto the Court suggest he was very much the "racist," and at least one law review article takes the view that this was reflected throughout Rehnquist's opinions as a judge.
According to Professor Alan Dershowitz, Rehnquist actually goose-stepped and heil Hitler-ed in imitation of Nazi soldiers in front of the Jewish dorm while a student at Stanford and "was infamous for telling racist and anti-Semitic jokes." There is no question that Rehnquist wrote a famous memo as a Supreme Court clerk advocating upholding racial segregation -- a view the Court then rejected -- and Rehnquist later tied to blame the memo on the justice he worked for even though the justice voted contrary to the memo on the case. There also seems to be little question that Rehnquist harassed and tried to intimidate black and Hispanic voters in Phoenix, Arizona, when he supervised voting there for the Republican party. While a Supreme Court Justice (and so in the public eye) he bought a house subject to the provision that it not be sold to ''any member of the Hebrew race.” Again according to Dershowitz: "He generally opposed the rights of gays, women, blacks, aliens, and religious minorities. He was a friend of corporations, polluters, right wing Republicans, religious fundamentalists, homophobes, and other bigots."
Which brings us to Scalia. Here I quote Talking Points Memo:
Speaking at Princeton University to promote his new book, Justice Antonin Scalia defended his previous controversial writings on gay rights, and explained to a gay student why he drew a legal analogy between laws banning sodomy to murder and bestiality.Arrogance and lack of serious legal thought bespeak Scalia here. I think I can put that more succinctly: he's a shitheel.
"I don’t think it’s necessary, but I think it’s effective," Scalia said Monday, in response to a student's question, according to The Associated Press.
"It’s a form of argument that I thought you would have known, which is called the ‘reduction to the absurd,'" he said. "If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?’"
When the student continued to press him, the justice reportedly quipped, "I'm surprised you aren't persuaded."
I've actually read his new book, Reading Law: The Interpretation of Legal Texts, and will be offering a review of it soon (don't hold you breath), as well as a discussion of his dispute and trading of insults with sort-of-conservative federal judge Richard Posner. Suffice it to say, though, that I do not think it serves anyone well to call those with whom they disagree "evil." My disagreements with all of these judges are not based on their status or their person but on the substance of their views.
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