Mitt Romney's embrace of rejected right-wing Supreme Court nominee Robert Bork received another pass in the media on Sunday when David Gregory, host of NBC's Meet the Press, failed to ask Romney about Bork and his outside the mainstream view of the Constitution in the course of a lengthy interview.
Bork serves as one of three co-chairs of Romney's "Justice Advisory Committee," which, according to his campaign, advises the candidate on "the Constitution, judicial matters, law enforcement, homeland security, and regulatory issues." Bork's nomination to the Supreme Court was rejected by a bipartisan Senate majority in 1987 because his positions on the Constitution were so far outside the mainstream.
GREGORY: I want to ask you one question on the social issue and that is abortion. You were on this program in 2007 and you said that you would fight to overturn Roe v. Wade. I know you said this is an issue for the courts. I ask you now would a President Romney fight to overturn Roe v. Wade? And what would you do in that fight to achieve that goal?
MR. ROMNEY: Well, there are a number of things I think that need to be said about preserving and protecting the life of the unborn child. And I recognize there are two lives involved: the mom and the unborn child. And I believe that people of good conscience have chosen different paths in this regard. But I am pro-life and will intend, if I'm president of the United States, to encourage pro-life policies. I don't--
GREGORY: Just encourage or fight for it to be overturned?
MR. ROMNEY: Well, I don't actually make the decision the Supreme Court makes and so they'll have to make their own decision. But, I will, for instance, I'll reverse the president's decision on using U.S. funds to pay for abortion outside this country. I don't think also the taxpayers here should have to pay for abortion in this country. Those things I think are consistent with my pro-life position. And I hope to appoint justices to the Supreme Court that will follow the law and the constitution. And it would be my preference that they reverse Roe v. Wade and therefore they return to the people and their elected representatives the decisions with regards to this important issue.
Gregory asked Romney one question which touched on the courts and the Constitution: "would a President Romney fight to overturn Roe v. Wade?" But that question falls short in addressing many other vitally important legal issues - from environmental regulation to racial justice, from women's equality to corporate power - that would come before judges nominated by Romney. Bork presumably advises Romney on these "judicial matters."
Romney's embrace of Bork is especially relevant and worthy of media scrutiny because the next president will almost certainly be in a position to appoint three or more Supreme Court justices. Four of the current justices are over 70 years of age, and Justice Ruth Bader Ginsburg will turn 80 next year. If Romney is elected and is able to confirm justices with views similar to Bork, he will shift the Roberts Court -- already one of the most conservative in history -- even farther to the right.
Despite the tremendous importance of the next President's ability to reshape the Supreme Court, major media outlets have for the most part ignored Romney's embrace of Bork and its implications for the future of the Court. The Washington Post, Wall Street Journal, Los Angeles Times, and the three major broadcast networks have all failed to address the issue. Only The New York Times has provided substantial coverage of Bork's role in Romney's campaign.
Journalists seeking to fulfill their responsibility to ask Romney about his decision to rely on Bork for advice will find no shortage of topics to address.
Bork and Racial Justice:
- Bork originally opposed the Civil Rights Act of 1964, which banned whites-only lunch counters among other forms of discrimination, claiming it was based on "a principle of unsurpassed ugliness."
- He now breezily downplays his former opposition to the landmark civil rights law, saying "[b]ut, heck, it was a long time ago. And it turns out that the transition to a non-discriminatory society was much easier than I thought it would be. I am now perfectly happy with the way things turned out."
Bork and Women's Rights:
- Bork believes the Fourteenth Amendment does not protect women from discrimination because in his view the Equal Protection Clause, which prohibits states from denying any person equal protection under the law, does not apply to them.
- After the Supreme Court ruled that exclusion of women from the Virginia Military Institute violated the Constitution, he characterized the decision as an "example of a feminized court."
- He believes women "aren't discriminated against anymore."
- He supports overturning Roe v. Wade on the grounds that there is no Constitutional right to privacy, a position that would permit states to ban contraception (including for married couples) in addition to abortion.
- Asked in a 2011 interview if he still believes the Supreme Court's decision in Griswold v. Connecticut, establishing the right for married couples to use contraception, was wrongly decided Bork replied, "Oh, my God, yes!"
Bork and Corporate Power:
- Jamin Raskin, a law professor at American University, recently labeled Bork "Mitt Romney's Corporate-Power Tool." Analyzing a study on Bork's record as judge on the U.S. Court of Appeals for the D.C. Circuit prepared by Public Citizen Litigation Group, a public interest law firm, Raskin notes:
The authors could find no "consistent application of judicial restraint or any other judicial philosophy" in Bork's work on the Court. Rather, by focusing on split decisions, where judicial ideology is made most plain, Public Citizen found that "one can predict [Judge Bork's] vote with almost complete accuracy simply by identifying the parties in the case."
When the government litigated against a business corporation, Judge Bork voted for the business interest 100 percent of the time. However, when government acted in the interest of corporations and was challenged for it in court by workers, environmentalists and consumers, Bork voted nearly 100 percent of the time for the government.
Thus, what we can think of as the Bork Rule, a rule that now suffuses conservative judicial activism: Corporations over government, corporate government over people.
- The Public Citizen study also found that Bork demonstrated similar pro-corporate bias in administrative law cases, which often deal with government enforcement of environmental, consumer, and worker safety regulations. As Raskin writes:
Judge Bork "adhered to an extreme form of judicial 'restraint' if the case was brought by public interest organizations against a government regulation or policy. His vote favored the government in every one of the split decisions in which public interest organizations challenged regulations issued by federal agencies." In these cases, Judge Bork defended, for example, the Reagan administration's corporate-friendly rules relating to the environment, the regulation of carcinogenic colors in food, drugs and cosmetics, and the regulation of companies with television and radio licenses, as well as privacy rules in family planning clinics. Bork tends to vote to uphold government policy when corporations like it and consumers, environmentalists, and workers are on the other side.
In the eight split decisions where a corporate interest challenged the government's regulatory policy or ruling, Judge Bork voted straight down the line against the government and for business -- every single time.
Bork's record includes hostility to civil rights legislation, opposition to women's rights, and reflexive support for corporate power. It is the job of journalists to discover why Romney seeks advice from someone with such a record.