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Robert Bork, of All People, Tries to "Bork" Elena Kagan

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By Rob Boston

Monday will be a big day for the U.S. Supreme Court. The justices will hand down a ruling in a closely watched church-state case, Christian Legal Society v. Martinez, and the Senate Judiciary Committee will begin hearings on justice nominee Elena Kagan.

The Kagan nomination is getting a lot of attention because little is known about her views. Unfortunately, it also dredged up a figure from the past I had hoped we had long ago seen the last of: Robert Bork.

I began my tenure at Americans United in November of 1987 – just weeks after the U.S. Senate voted to reject Bork’s appointment to the Supreme Court. Americans United and an array of other organizations strongly opposed his confirmation.

I missed fighting the Bork battle but did write my first-ever story for Church & State about Anthony M. Kennedy, the man who got the seat Bork coveted.

That was nearly 24 years ago – and it’s obvious Bork is still bitter about what happened to him.

Since then, Bork has periodically resurfaced in my life. I’ve heard him speak at several Religious Right meetings, and I’ve read about his periodic comments in the press.

Now Bork is popping off about Kagan. He blasted her, telling an anti-abortion group that the nominee “has not had the time to develop a mature philosophy of judging” and “hasn’t had any experience that would lead her to mellow.… [T]he academia is not a place where you use prudence and caution and other virtues of a judge.”

Let me get this straight: Bork, who has gone so far to the right over the years that he long ago fell off the edge, thinks Kagan needs to “mellow”?

This is the Bork who denied that the Constitution contains a right to privacy. This is the Bork who has advocated amending the Constitution to allow a super-majority of Congress to overturn Supreme Court rulings. (So much for that “separation of powers” thing!) This is the Bork who opposed banning discrimination in public accommodations saying it would “compel association even where it is not desired.”

This is the Bork who said “not much would be endangered” if official prayer were reintroduced in public schools and more religious symbols were erected at government sites.

This is the Bork who, when asked at a public forum about a Jewish boy who was humiliated over state-mandated Christian exercises in public schools blithely commented, “So what? I’m sure he got over it.”

The American people were not impressed with Bork’s extreme views, and they let the Senate know that. When his confirmation vote came, it wasn’t even close – 58 against and 42 for. Ironically, although his last name became a verb, Bork wasn’t “borked” – in the sense that he was subjected to unfair treatment. It was his own extreme views that did him in.

And today, Bork just keeps it up. He told Americans United for Life that if Kagan is confirmed, “you will have a court that is much more to the left than we have today.”

Can the man not count? Let’s say Kagan turns out to be as progressive as the justice she hopes to replace, John Paul Stevens (a big assumption, by the way). The court would maintain status quo. Unless Kagan find a way to finagle two votes or somehow persuades Justice Antonin Scalia to join her side, the high court’s ideological balance will not change.

I don’t know what kind of justice Kagan will turn out to be. Americans United has urged the Senate Judiciary Committee to ask her some pointed questions about separation of church and state. We are hoping for some tough (but respectful) interrogation. We’re happy to see the process play out, and we don’t need the type of crude attacks Bork has become famous for.

Everyone has the right to express an opinion about Kagan. But some people have opinions so ill-informed or extreme that they are not worth listening to. Bork is one of those people. I am so glad he never made it onto the Supreme Court!

You didn’t get the high court seat, Bob. Get over it.


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