Tuesday, May 1, 2012

Now Mitt Romney wants to Bork us

Posted By on Tue, May 1, 2012 at 6:25 AM

HES BACK: Robert Bork.
So many provocations, so little space and time. But Ernest Dumas picks up one of Mitt Romney's many thoughtless utterances and views it with some alarm.

This was that Romney might look to Robert Bork for guidance on matters legal.

Robert Bork? Read on for a refresher in Ernie's column this week, along with a cartoon George Fisher drew up for Dumas when he wrote about the failed U.S. Supreme Court nominee almost 25 years ago. This is personal, Arkies. Bork would have really Borked the state on the Grand Gulf power plant, had his legal reasoning prevailed.


If you are a woman, worker, consumer, 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 anytime a question comes up about justice, like appointments to the federal courts.

People are supposed to just think Bork=conservative, but in his prime Bork worried a lot of 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.

Is one party a corporation that is fighting workers, consumers, shareholders, environmentalists or a government regulator? Corporation wins. If a law is challenged, was it a Democratic or Republican act? If they are counting the votes to see who won, stop the counting and declare the Republican the winner. Bork is not on the court, but his school of thought has won the day.

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.

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 with a long memory know what I’m talking about. In 1979, Arkansas tried to escape an arrangement by the holding company of the state’s biggest electric utility to make Arkansas customers pay a big part of the Grant Gulf nuclear power units in Mississippi although the power was to be used by people and businesses in Louisiana and Mississippi. Over the next eight years, Arkansas lost that fight before President Reagan’s regulators and the federal courts.

As a result, the power distribution and cost overruns from the nuclear units in Mississippi and Louisiana have cost people in Arkansas, who could ill afford it, more than $4.5 billion. When the case went to the District of Columbia Court of Appeals, the panel upheld the scheme, which required Arkansas to bear 36 percent of the Mississippi and Louisiana 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?

Tags: , , ,

From the ArkTimes store


Speaking of...

Comments (13)

Showing 1-13 of 13

Add a comment

Subscribe to this thread:
Showing 1-13 of 13

Add a comment

More by Max Brantley

  • Executionpalooza

    Appearances count. I was struck by a single sentence over the weekend in a full page of coverage in The New York Times devoted to the killing spree in Arkansas, beginning with a front-page account of the recent flurry of legal filings on pending executions and continuing inside with an interview with Damien Echols, the former death row inmate.
    • Apr 20, 2017
  • Death Row inmates argue to keep stay of execution in place; urge 8th Circuit not to 'rush' analysis

    Early this morning, attorneys for nine Death Row inmates, filed an argument with the 8th United States Court of Appeals contesting the state's effort to override Judge Kristine Baker's order Saturday that halted executions scheduled this month.
    • Apr 17, 2017
  • Federal judge denies execution stay for Don Davis but larger stay continues

    Don Davis, who's been moved to the killing facility of the state prison for killing tonight at 7 p.m. if a stay of execution is lifted in another federal suit, sought a stay in another federal court Sunday, but the request was denied.
    • Apr 17, 2017
  • More »

Readers also liked…

  • State Police issues statement on Jason Rapert 'threats'

    The State Police have issued a minor clarification in what appears to be an effort to soothe an enraged Sen. Jason Rapert, exposed here as overly excited about both a Conway parking lot question from a constituent as well as some inflammatory Internet rhetoric that he's interpreted as a dire threat on his life. State cops took his reports seriously, they say. But in the end, they found nothing actionable.
    • Sep 15, 2015
  • Democrats name new House minority leader

    Rep. Michael John Gray of Augusta has been elected leader of the House Democratic Caucus, the minority party. He succeeds Rep. Eddie Armstrong of North Little Rock. He's a farmer and small business owner.
    • Sep 25, 2015
  • From Dallas, creative thinking about the Interstate 30 project

    An urban planner in Dallas says freeways are not always the answer. Incorporating some creativity already being used in Dallas and looking at the Interstate 30 project from a broader perspective, here are ideas that Arkansas highway planners have not considered. But should.
    • Nov 6, 2015

Most Shared

  • Executionpalooza

    Appearances count. I was struck by a single sentence over the weekend in a full page of coverage in The New York Times devoted to the killing spree in Arkansas, beginning with a front-page account of the recent flurry of legal filings on pending executions and continuing inside with an interview with Damien Echols, the former death row inmate.
  • Art bull

    "God, I hate art," my late friend The Doctor used to say.
  • Not justice

    The strongest, most enduring calls for the death penalty come from those who feel deeply the moral righteousness of "eye-for-an-eye" justice, or retribution. From the depths of pain and the heights of moral offense comes the cry, "The suffering you cause is the suffering you shall receive!" From the true moral insight that punishment should fit the crime, cool logic concludes, "Killers should be killed." Yet I say: retribution yes; death penalty no.
  • Judge Griffen writes about morality, Christian values and executions

    Pulaski County Circuit Judge Wendell Griffen, who blogs at Justice is a verb!, sends along a new post this morning.
  • The Ledell Lee execution thread

    Arkansas Times contributor Jacob Rosenberg is at the Cummins Unit in Grady filing dispatches tonight in advance of the expected execution of Ledell Lee, who was sentenced to death for the Feb. 9, 1993, murder of Debra Reese, 26, who was beaten to death in the bedroom of her home in Jacksonville.

Visit Arkansas

Haralson, Smith named to Arkansas Tourism Hall of Fame

Haralson, Smith named to Arkansas Tourism Hall of Fame

Chuck Haralson and Ken Smith were inducted into the Arkansas Tourism Hall of Fame during the 43rd annual Governor’s Conference on Tourism

Most Viewed

  • Lee's lawyer writes about executed man's last hours

    Lee Short, the lawyer for Ledell Lee, the man Arkansas put to death just before midnight last night, posted on Facebook the following letter of thanks for personal support and a bit about Lee's last hours, distributing his possessions and talking to family.

Most Recent Comments




© 2017 Arkansas Times | 201 East Markham, Suite 200, Little Rock, AR 72201
Powered by Foundation