Columns » Ernest Dumas

Getting Borked by Romney

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George Fisher Robert Bork cartoon image
  • A 1988 George Fisher cartoon.

If you are a woman, worker, con-sumer, conservationist, minority or just an ordinary Arkansan, here is an ominous development: Mitt Romney says that if he is elected president he will bend an ear to Robert Bork.

In his prime Bork worried even conservatives. You may remember the explanation of the Republican senator from Virginia, John Warner, when he voted against Bork's confirmation as a Supreme Court justice in 1987: "I cannot find in him the record of compassion, of sensitivity and understanding of the pleas of the people to enable him to sit on the highest court of the land."

Six Republicans broke with their president and voted against Bork, whose rejection, 58-42, was the largest in history. His record of legal opinions, articles and speeches had spilled out and it was not heartening to many people: The Constitution's equal protection clause was not meant for women. The Constitution gives Americans no right to privacy from the government. States should be given back the right to impose literacy tests and poll taxes, the devices we used in Dixie to keep blacks from voting. The First Amendment protects only political speech; the government should be able to restrict any other kind.

But Bork's view that the Constitution is for the privileged was not his most worrisome notion. Rather, it was that what was important about a case was not the law but the identity of the parties.

Bork established that legal doctrine on Saturday night, Oct. 20, 1973, when President Nixon ordered his attorney general, Eliot Richardson, to fire Archibald Cox, the Watergate independent counsel who was trying to obtain the secret White House tapes on Watergate. Richardson resigned and so did William Ruckelshaus, the next in command, when Nixon told him to fire Cox. But the third in line, Solicitor General Robert Bork, elevated late in the night to attorney general, instantly obliged and fired Cox, establishing that we were, indeed, a nation not of laws but of men.

Bork is not on the court, but his school of thought has won the day.

No matter how arcane the issue, in Bork's country there are people who just ought to win because of who they are and what they stand for, and the law is secondary. Women are not in that group. Neither are workers. Democrats? Not.

Arkansans who've been around for a while will remember Bork's opinion in the Grand Gulf nuclear power case that started in 1979. In that eight-year court case, Arkansas fought President Reagan's regulators and the federal courts over the state's biggest utility's arrangement to make people here pay for 36 percent of the cost of nuclear power plants that would serve only Louisiana and Mississippi. It has since cost Arkansans, who could ill afford it, more than $4.5 billion.

The District of Columbia Court of Appeals upheld the scheme, which required Arkansas to bear the costs in perpetuity. But Judge Bork dissented in part. Arkansas homeowners and businesses, he said, should pay not 36 percent but nearly all the costs. Had he prevailed, Arkansas's subsidy to its neighbors would have been closer to $10 billion. He dreamed up a cockamamie formula that would shift the costs to Arkansas.

Who knows what he had against Arkansas? Given Bork's disposition, the speculation at the time may have been right. Arkansas was the least Republican of the Southern states. Its two senators were Democrats (both voted against his Supreme Court nomination that year). Its governor, Bill Clinton, had taken a law class from him at Yale and was mildly critical of his nomination. Mississippi and Louisiana and its congressional delegation were on the right side — Bork's side — on all of that.

But here's an encouraging thought. Though Romney said he wished that Bork had been on the Supreme Court and making the laws right the last 25 years, he's too old to take any more vengeance on Arkansas. Isn't he?

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