Robert Bork

Taking over the Supreme Court is an obsession on the far right, and Mitt Romney is on course to do their bidding. Romney selected none other than Robert Bork to serve as his chief judicial advisor. 

People For the American Way has just published a new report by Senior Fellow Jamie Raskin which exposes the Tea Party’s dangerously distorted view of the Constitution and core constitutional values. (Is the 14^th Amendment the authoritative constitutional source for the nation-defining civil rights revolution of the 1950s and 1960s, or is it an illegitimate pretext for an assault on private business owners’ rights and responsibilities?)

Now that Sonia Sotomayor has been confirmed by a vote of 68 to 31, it's never too early for the right-wing groups that vehemently opposed her nomination to start claiming victory:

The final vote was “a triumph of party unity over some of the interest group politics that you would have expected to play a bigger role,” said Curt Levey, executive director of the conservative Committee for Justice, which opposed Judge Sotomayor’s confirmation.

But that is nothing compared to the spin contained in this lengthy memo that the Judicial Confirmation Network released before the final vote was even taken, proclaiming its opposition campaign a monumental success by making Sotomayor the "most unpopular confirmed Supreme Court nominee ever," "refuting the liberal judicial activist philosophy of the President," and, most importantly, frustrating liberal left activists:

Although Judge Sotomayor was confirmed, it was not a resounding victory for the liberal view of the Court: in fact, just the opposite. Because she failed to uphold the liberal view of the Constitution and judging, she has made it more difficult for future Obama nominees who would attempt to be more intellectually consistent and honest. President Obama, the darling of the liberal left, failed – when he had the greatest capital to spend on a nomination of his choosing – to put a powerful and unabashed liberal lion, in the mold of Justice William Brennan, on the Court.

This has unnerved the liberal left and put President Obama into a box. Judicial restraint has won, and judicial activism has lost. Some who voted for Judge Sotomayor, such as Sen. Ben Nelson (D-Neb.), specifically did so because he concluded she was “not an activist.” Although Sen. Nelson plainly made an analytical mistake, at least he had the right goal in view. Accordingly, future nominations promise to focus on the nominee’s actual adherence to the practice of judicial restraint. And future liberal activist nominees who have not penned the inexplicable, analysis-free opinions that Judge Sotomayor generated in important cases may find their records harder to hide from.

31 “no” votes in the U.S. Senate.

It’s remarkable, and a real show of strength for proponents of judicial restraint, that the negative vote on this nomination was so high. The “historic” nomination of the first Hispanic nominee to the Court, made by the purportedly “post-partisan” President Obama, who at the time enjoyed high personal popularity and was still in his post-inaugural honeymoon, with a commanding 60-vote supermajority of Democratic votes in the Senate, could not muster even close to the 78 “yes” votes that Chief Justice John Roberts received. The 31 votes against Judge Sotomayor are the highest “no” vote on any Supreme Court nominee picked by a Democratic president since 1894.

And this record opposition to a Democratic nominee occurred on a straight up-or-down vote, following a nomination process that Judge Sotomayor herself said was fair and respectful; Republican Senators never stooped to the common Democratic tactics of personal attacks and obstruction. They asked tough questions, reflected thoughtfully, and discharged their constitutional job of “advice and consent” promptly.

So, despite the Right's relentless attack campaign, Sotomayor was confirmed by a 2 to 1 margin and will now take her place on the Supreme Court?

Well then, by all means, congratulations on your resounding victory, JCN.

UPDATE: The Committee for Justice has released its own equally delusional statement:

“The engagement of the Second Amendment community will long be remembered as the most significant aspect of this confirmation battle. Although the NRA’s decision to oppose Judge Sotomayor and score her confirmation vote got the most attention, the grassroots mobilization of gun owners from the bottom up is probably the biggest story. As a result, gun rights emerged as the most influential issue in this and probably future Supreme Court confirmation battles.

“By adding a large and influential constituency to the coalition opposing the nomination of judicial activists, the Second Amendment issue has forever changed the political dynamics of the judicial confirmation process.

...

“Republican senators should be proud not only of their votes today, but also of the tough but fair questions they asked Sotomayor during her hearings and of the powerful floor statements they made in opposing her. As a result, Americans got the teaching moment they deserved. For the first time since the nomination of Robert Bork in 1987, the confirmation battle saw a serious debate about judicial philosophy and the proper role of judges, rather than just an argument about case outcomes.

...

"[T]he living Constitution is now dead as a defensible judicial philosophy outside academia. There is no doubt that judicial activism will live on surreptitiously in the courts, but it is doubtful we will ever again see a Supreme Court nominee who has openly espoused it, no less one willing to defend it during his or her confirmation hearings.

“Finally, it has been a bad summer for the purveyors of identity politics. Not only was the President forced to beat a hasty retreat from his old-school, victim-based take on last month’s incident in Cambridge, but his Supreme Court nominee denied any knowledge of the race-base theories of judging she and other liberals have long championed. Meanwhile, Democrats failed miserably in their attempt to convince Republican senators that they opposed a Hispanic nominee at their ‘own peril’ (quoting Sen. Schumer). Polls showing that Hispanics and non-Hispanic whites shared the same unimpressive levels of support for Sotomayor generally, as well as the same levels of specific concern about her Second Amendment record, dealt a further blow to identity politics. Those of us who believe that racial favoritism has no place in law or politics should celebrate.”

Back when George W. Bush was seeking confirmation for his Supreme Court nominees, there was a group of right-wing Washington insiders known as the "four horsemen" who were at the center of this effort:

The calls start just after 8 every morning, and the participants phone in from just about anywhere. A lawyer speed dials the teleconference line from a taxi as he dashes to a breakfast meeting. A radio evangelist checks in before heading to Atlanta. An old Reagan hand punches in the password from a hotel room while a federalist movement leader calls from his office near the White House.

The daily conference call, in many ways, is indistinguishable from thousands of others occurring inside Washington's beltway, but with one big difference: This one is shaping the Republicans' nomination strategy for the Supreme Court and, in consultation with the White House, scripting party-line talking points. The daily call is also the glue for a fragile conservative coalition, from the religious right to the business lobby, that's smoothing the way for President Bush's nominee to replace Justice Sandra Day O'Connor.

The men, who have been dialing in since 2003, have come to be known as the "Four Horsemen": C. Boyden Gray, Edwin Meese III, Jay Sekulow, and Leonard Leo. Hand-picked by the White House for their ties to disparate conservative groups, they have been instrumental in helping the president name strict constitutionalists to the federal bench--and now they hope to do the same on the nation's highest court. "We've been waiting for this for four years," says Sekulow of the American Center for Law and Justice. And so the Four Horsemen are galloping into this confirmation fight.

This time around, with a Democrat in the White House and Sonia Sotomayor nominated to the Supreme Court, most of these horsemen have been nowhere to be seen.  While Sekulow remains engaged in the process, both Leo and Gray have been relatively absent, though they have spoken out on occasion, while Meese had been seemingly AWOL entirely. 

Or so we thought until we saw this:

Ed Meese is at it again.

The Reagan-era attorney general, beloved by conservatives but long reviled by many liberals, is playing an important behind-the-scenes role in coordinating opposition to Supreme Court nominee Sonia Sotomayor.

From his perch at the conservative Heritage Foundation, the 77-year-old Edwin Meese III has been meeting with a network of right-of-center lawyers, buttonholing Republican senators and preaching the same message he’s been delivering since the 1980s: judges should follow the Constitution and not push a liberal agenda from the bench.

“He’s been very influential in his meetings on Capitol Hill and behind-the-scenes working with leading legal lights,’’ said Gary Marx, executive director of the Judicial Confirmation Network, which has been echoing Meese’s message with regular public blasts against Sotomayor.

“All of us feel like we stand on the shoulders of giants who have come before us, and clearly Meese is one of those giants and a conservative icon,’’ Marx added.

Interestingly, we've read lots of coverage about the Right's efforts to coordinate its opposition to Sotomayor but have never even so much as seen Meese's name mentioned very often.  Frankly, that is not surprising because presumably the Right doesn't really want its anti-Sotomayor efforts to be too compromised by knowledge that the man who played in central role in nominating Robert Bork to the Supreme Court is now playing a similar role in opposing Sotomayor.

Robert Bork does not have high hopes for the future of the judiciary under President Barack Obama:

Former Supreme Court Justice nominee Robert Bork predicts that President-elect Barack Obama’s judicial nominees will orchestrate a profound sea change in U.S. jurisprudence, legalizing same-sex marriage, restricting or eliminating the death penalty, and tying the hands of the military so severely that “commanders in the field will have to be gathering evidence while they’re fighting.”

In an exclusive interview with Newsmax, Bork, who currently serves as a distinguished legal scholar at the Hudson Institute, criticized Obama’s view of the role of judges … Bork’s expectations for the future of American jurisprudence, once Obama’s nominees are seated?

“I would think that same-sex marriage, homosexual marriage, is one that’s likely to be ordered by the courts,” he says. “Roe v. Wade abortion will not change.

“They’ve been whittling away at the death penalty, although the death penalty is mentioned about four times in the Constitution as allowed if certain procedures are followed,” Bork adds. “It’s up to the people whether they want it or not. But this court has been whittling away at it without any warrant from the Constitution and without any warrant from the people. And I think they may just outlaw the death penalty altogether -- which I think is not only bad judicial interpretation, but may endanger lives.”

We, of course, take Bork's angst as a good sign since it is not as if he is any sort of moderate, middle-of-the-road observer – in fact, he’s a right-wing ideologue whose radical views sunk his own Supreme Court nomination twenty-plus years ago.  And since then, he’s only become increasingly radical and militant, as we pointed out in a piece we wrote a few years ago about the rantings that have defined his post-judiciary career:

It appears as if almost everything within contemporary culture possesses the capacity to offend Bork.  He attacks movies for featuring “sex, violence and vile language.”  He faults television for taking “a neutral attitude toward adultery, prostitution, and pornography” and for portraying homosexuals as “social victims.”  As for the art world, most of what is produced is “meaningless, uninspired, untalented or perverse.”  He frets that the “pornographic video industry is now doing billions of dollars worth of business” and the invention of the Internet will merely result in the further indulgence of “salacious and perverted tastes.”  When it comes to music, “rock and rap are utterly impoverished … emotionally, aesthetically, and intellectually.”

More to the point, Bork is not content merely to criticize; he wants the government to do something about it.  “Sooner or later,” he claims “censorship is going to have to be considered as popular culture continues plunging to ever more sickening lows.”  So committed is he to this cause that he dedicated an entire chapter in his 1996 book Slouching Toward Gomorrah to making “The Case for Censorship.”  In it, he advocates censoring “the most violent and sexually explicit material now on offer, starting with obscene prose and pictures available on the Internet, motion pictures that are mere rhapsodies to violence, and the more degenerate lyrics of rap music.”

When asked by Christianity Today about how he would decide what should and should not be censored, Bork announced: “I don’t make any fine distinctions; I’m just advocating censorship.”  He went on to argue that the United States has a long history of censorship, and that such censorship “didn’t suppress any good art, it didn’t eliminate any ideas.”  He goes on to state that, were individuals to decry such censorship as inhibiting their individual liberty or right to express themselves, he would reply “… yes, that is precisely what we are after.”

John McCain is planning to be in North Carolina tomorrow where he is scheduled to give a speech on judicial nominations:

John McCain’s campaign said Friday that Fred Thompson and Sam Brownback will join the presumptive GOP nominee in North Carolina next week for a major speech on judicial appointments.

Both Thompson and Brownback have endorsed the Arizona senator, and both Republicans presented themselves throughout the Republican primary battle as “consistent conservatives,” particularly regarding social issues and judicial appointments.

The speech, to be held Tuesday at Wake Forest University in Winston-Salem, will be just one element of a broader outreach to conservatives next week, according to the campaign.

McCain is expected to discuss the kinds of judges he would appoint up and down the federal bench.

Why he is doing this on the day of the Democratic primary in the state is hard to understand.  Perhaps he is hoping to work his way into the press coverage … or perhaps he is hoping to keep a rather low profile while he delivers remarks designed solely to, once again, assure the GOP’s right-wing base that he’ll appoint justices like John Roberts and Samuel Alito to the Supreme Court without attracting too much attention from the media.  

Either way, he’s probably hoping that the press won’t bother to actually write about his record on judges as exemplified by, say, his 1987 support of Robert Bork [PDF]:

I would like to explain why I am going to vote of favor of confirmation [of Robert Bork], and why I do so without  any hesitation … I believe that what the Senate should appropriately examine in a nominee are: Integrity and character, legal competence, and philosophy and judicial temperament.  I believe Robert Bork is well qualified in all four respects … Judge Bork’s honesty, integrity, and diligence are above reproach … [he] demonstrates that he is not some intellectual “loose cannon on deck,” or a quixotic maverick jurist , but is a thoughtful, reasonable, jurist … [he] is hardly a radical, but is rather a very thoughtful judge in synch with the vast majority of his colleagues on the bench.  

…

First, and most importantly, is the question of Judge Bork’s view of the role of the judiciary.  Judge Bork is clearly a believer in judicial restraint.  He believes that the courts should not create social policy or arbitrate social policy disputes unless the Constitution clearly speaks to the issues.  He believes that in our republican form of government such decisions are properly left to legislatures elected by the people, not Federal judges appointed for life.  I have no problem with that view, because I wholeheartedly agree with it.  

…

I have no problem with my colleagues voting against Bork if they truly believe he is unfit for the Supreme Court – although I personally cannot conceive of how you could reach that conclusion … I believe Robert Bork will be an outstanding Justice and contributor on that Court … Robert Bork deserves our support and will be a great Supreme Court Justice.  

In his endorsement, McCain delivered a lengthy defense of Bork’s controversial views, stating that Roe v. Wade is "the clearest example of judicial 'legislation'" and that the rules it set out are "nonsense."   Nor did McCain appear to be a fan of the right to privacy, stating that it was entirely "created by Justice Douglas in the Griswold case."

Joining McCain will be Fred Thompson, who shares McCain’s affinity for Justices like Roberts and Alito and is already out making the pitch for McCain on the issue of judges, and Sen. Sam Brownback, who endorsed McCain after his own presidential campaign folded in the early-going, in part to help pay off his campaign debt, but also because he was promised that he “would play an advisory role in helping decide who he should nominate for the Supreme Court.”   That undoubtedly appealed to Brownback because, as he repeatedly stated when he was campaigning, he wanted nothing more than “to be the president that appoints the justice that's needed vote to overturn Roe vs. Wade."  While he won’t get that opportunity to do that directly, advising McCain on Supreme Court nominations will still allow him to play an important role in finding a Supreme Court nominee that will finally eliminate the right to choose.

For months, Republican presidential hopefuls have been wooing potential conservative voters with pledges to nominate right-wing ideologues to the seats on the federal judiciary and, more importantly, the Supreme Court.  Mitt Romney and Rudy Giuliani have been the two candidates most actively pushing this pledge, both having unveiled their own respective “judicial advisory committees” stuffed with judicial confirmation activists ranging from Ted Olson and Miguel Estrada to Jay Sekulow and James Bopp.  

But now Mitt Romney appears to have a leg-up in the battle over which candidate can secure the most militantly right-wing backer by landing the endorsement of Robert Bork:

Today, noted conservative jurist Judge Robert Bork endorsed Governor Mitt Romney for President of the United States.

Joining Romney for President, Judge Bork said, "Throughout my career, I have had the honor of serving under several Presidents and am proud to make today's endorsement. No other candidate will do more to advance the conservative judicial movement than Governor Mitt Romney … Our next President may be called upon to make more than one Supreme Court nomination, and Governor Romney is committed to nominating judges who take their oath of office seriously and respect the rule of law in our nation. I also support Governor Romney because of his character, his integrity and his stands on the major issues facing the United States."

Welcoming Judge Bork's support, Governor Romney said, "For decades, Judge Bork has been a leader in moving the conservative legal movement forward. As one of our nation's premier conservative jurists, he has been an important voice for our conservative values in Washington. I look forward to his counsel and working with him on the most important judicial matters facing our nation today."

Earlier this year, Bork appeared at the Values Voter Summit where he explained that social conservatives must use “tactical discretion” and continue to support the Republican Party’s presidential nominee, no matter who it is, in order to ensure that right-wing justices end up on the Supreme Court because, ultimately, “the object should be to get rid of Roe [v. Wade]:

While Romney may consider Bork to “one of our nation's premier conservative jurists,” that was obviously not the view of the bipartisan group of 58 senators who defeated Bork’s nomination to the Supreme Court in 1987, rejecting his extremist legal and judicial philosophy.  

In light of Bork’s endorsement, perhaps now would be a good time to dust off a 2002 PFAW op-ed ”In Praise of 'Borking’” which takes on the Right-created mythology that Bork was somehow the victim of a smear. In reality his confirmation hearings were perhaps the best public conversation about the Constitution that most Americans had ever seen, and it was Bork's own extremism that led to his bipartisan defeat.

D. James Kennedy, who built up Fort Lauderdale, Florida megachurch and television empire over the last half-century, has officially retired, eight months after he was first hospitalized following a heart attack. Coral Ridge Presbyterian Church has nearly 10,000 members, and his broadcast ministry claims 3.5 million listeners and viewers, but he is best known as one of the founding figures of the Religious Right in the early 1980s, known as the “Ivy League Jerry Falwell.”

Kennedy, who once said that “the diabolical mission” of People For the American Way was “to crush the influence of the Christian religion in American society,” became active in political issues from battling pornography, “secularized” education, abortion, and civil rights for gays to supporting Reagan administration policies like SDI, Iran-Contra, and the nomination of Robert Bork to the Supreme Court. His involvement grew in the 1990s and 2000s, as he organized national conferences for religious-right activism and expanded his influence in Washington.

The 76-year-old Kennedy’s retirement comes just a few months after the death of Jerry Falwell, and again heralds the inevitable passing of the older generation of religious-right leaders -- Falwell, Kennedy, 71-year-old James Dobson, 69-year-old Don Wildmon, and others who built the infrastructure and set the pattern for fundamentalism-charged politics.

Much more on D. James Kennedy’s political career below.