Out-of-mainstream Bork attempts to paint Kagan as outside the mainstream

Robert Bork -- Reagan's failed 1987 Supreme Court nominee -- announced his opposition to current nominee Elena Kagan using the discredited argument that Kagan's praise of Israeli Justice Aharon Barak puts her outside of the mainstream. In fact, it is Bork himself who is outside the mainstream.

Bork pushes discredited attack on Kagan

Bork attacked Kagan for praising Israeli Supreme Court Justice Aharon Barak. The Washington Post's David Weigel reported on June 23:

Former judge and unsuccessful 1987 Supreme Court nominee Robert Bork officially opposed the nomination of Elena Kagan today, joining a conference call sponsored by Americans United for Life to argue that her admiration for former Israeli Supreme Court justice Aharon Barak disqualified her for the job.

“It's typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what courts can do,” Bork said. “That usually wears off as time passes and they get experience. But Ms. Kagan has not had time to develop a mature philosophy of judging. I would say her admiration for Barak, the Israeli justice, is a prime example. As I've said before, Barak might be the least competent judge on the planet.”

In fact, conservatives including Scalia and Fried have also praised Barak. At an American Association of Jewish Lawyers and Jurists award ceremony, U.S. Supreme Court Justice Antonin Scalia presented Barak with an award and was reportedly “singing Barak's praises,” even as he “addressed the other obvious disparity between himself and the honoree.” In addition, former Reagan administration Solicitor General Charles Fried described Barak as “superhuman, a mythical character” who “manages to integrate the principle elements of law and judging, that is to say text, history, custom, precedent and to come up with the one right answer.”

Salon noted that Bork is now joining one of the very “public campaigns of distortion” he warned against. From the June 21 Salon article:

Robert Bork, the last Supreme Court nominee to be rejected by the Senate, is set to publicly oppose Elena Kagan's nomination at a Wednesday news conference organized by an antiabortion group.

There is plenty of irony here. Back in 1987, when Ronald Reagan tabbed him to replace the retiring Lewis Powell on the court, Bork and his supporters railed against what they saw as concerted effort by liberal interest groups to demonize him and poison the public against him. When it became clear that more than 50 senators would vote to reject him, Bork refused to withdraw his nomination, insisting that the Senate go ahead and vote and claiming that “a criucial principle is at stake” :

“That principle is the way in which we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success and it would be mounted against future nominees.”

Twenty-three years later, Bork will now be joining one of the public campaigns he warned about. [emphasis added]

Bork holds extreme legal positions

Unlike Thomas, Roberts, and Alito, Bork repeatedly refused to testify that the Constitution contains a generalized right to privacy. During his 1987 confirmation hearings, Bork repeatedly refused to say that a generalized right to privacy exists in the Constitution. Unlike Bork, conservative Supreme Court Justices Roberts, Alito, and Thomas all testified that there is a constitutional right to privacy In fact, every Justice since Bork -- including Republican appointees Clarence Thomas, John Roberts, and Samuel Alito -- has testified that there is a constitutional right to privacy.

Bork disagreed with Supreme Court decision to strike down poll taxes in elections for state officials. Bork has criticized the Supreme Court's decision in Harper v. Virginia, which struck down a poll tax levied on those who voted in elections for state officials on the grounds that it discriminated against poor people in violation of the Equal Protection Clause. In his Solicitor General hearing, Bork said, “It was a very small tax, it was not discriminatory, and I doubt that it had much impact on the welfare of the nation one way or the other.” During his Supreme Court hearing, Bork stood by his comments, saying there was no evidence that the poll tax was discriminatory and "[i]t was just $1.50 poll tax." Bork did say that he did not personally favor the imposition of poll taxes.

Bork disagrees with the ruling that desegregated D.C. schools. Bork has also said that Bolling v. Sharpe, a case that desegregated District of Columbia schools, was wrongly decided. In his 1990 book Tempting of America: The Political Seduction of the Law, he says the decision, “rested on no precedent or history” and that “history compel[led] the opposite conclusion.”

During “Saturday Night Massacre,” Bork fired Watergate special prosecutor after his superiors refused. In 1973, Attorney General Elliot Richardson assigned Archibold Cox as independent counsel to investigate the Watergate scandal. After Nixon refused to fully comply with a subpoena Cox issued for taped conversations Nixon had had in the Oval Office, Nixon ordered Richardson to terminate Cox. Richardson resigned rather than carry out the order. Nixon then asked Deputy Attorney General William Ruckelshaus to dismiss Cox, but he also resigned rather than carrying out the order. Bork, who was solicitor general at the time and, by law, was acting attorney general when the attorney general and deputy attorney general are absent, agreed to fire Cox.

According to the blog Mainjustice.com, in a 2009 speech Ruckelshaus said “Both Elliott and I had urged Bork to comply if his conscience would permit. We were frankly worried about the stability of the government. Bork indicated to us that he believed the President had the power to fire Cox and he was simply the instrument of the exercise of that power.”

Past solicitors general have recently endorsed Kagan

Conservative Solicitors General have endorsed Kagan. While former solicitor general Bork plans to attack Elena Kagan's record, eight former solicitors general have recently signed a letter endorsing Kagan, including several who served under conservative presidents. The group of signees includes Kenneth W. Starr, of George H.W. Bush's administration, and Theodore B. Olson, of President Bush's administration.