John Podhoretz Writes an Obituary for Robert Bork – and Illustrates the Vacuous Content of Conservative Judicial Philosophy

No, Not What He Intended – It is What He Produced

The death of former U. S. Solicitor General and failed Supreme Court nominee Robert Bork has brought forth an examination of the nature of conservative philosophy with respect for the law and the Constitution.  First to comment is one of the more polarizing and intellectually bankrupt of the Conservative philosophers, John Podhoretz.

What Mr. Podhoretz tries to do is to eulogize Mr. Bork.  What he succeeds in doing is to expose what Conservative judges really want, which is a literal interpretation of laws and the Constitution that leaves Conservative positions untouched and obliterates positions with which Conservatives disagree.  The most famous of these involves a case in which the state of Connecticut banned the sale of contraceptives.  Conservatives hate the idea of contraception, because it removes the risk of unwanted pregnancy from couples engaging in private activity which Conservatives don’t want them to do.  So incredibly enough, Conservatives believe that the government has a right to ban contraception.

Here is Mr. Podhoretz attempting to rescue Mr. Bork’s erroneous and offensive position.

You asked him about his views of cases like Griswold v. Connecticut, involving the privacy of sexual acts in the bedroom, and he said the case had been wrongly decided not because there should be no privacy but because he could locate no right to privacy in the Constitution. This was, he said, a matter for legislatures, not courts.

Think about what is being said here.  The principles of the Constitution do not provide any right to privacy, any right for men and women to be left alone in the privacy of their homes by government!  Government has the right to regulate any private behavior that it wants to.  That this is the very antithesis of the real Conservatism is lost on people like Mr. Bork and Mr. Podhoretz.  In their non-democratic world if government wants to pursue their policy of enforcing their behavior on others, it has the right to do so.

We saw that this philosophy was still present among faux conservatives when Republican Presidential candidate Rick Santorum and others argued that while they were against a policy of putting gay and lesbian people in jail because they were gay or lesbians, the government certainly had the authority and right to do so if it chose to do so.  

Of course, abortion rights is the big issue here.  Read these sentences and see if you can find anything admirable with respect to either the author or the subject. (and notice the ugly personal  cowardly attack on the late Senator Kennedy, who is conveniently deceased and thus unable to defend himself).

Bob Bork became a sacrificial lamb for, among others, Ted Kennedy, who had experience. This one would not drown; this one Kennedy would only libel by accusing him of wanting to return America to the days in which women got abortions with coat hangers. Why? For the crime of arguing, honestly and correctly, that Roe v. Wade, which somehow found  a right to abortion in the language of a document that never mentioned abortion, was a travesty.

And yes, the Constitution never mentions assault rifles either, but somehow Conservatives find in that document the right for anyone to acquire such a weapon.  Why, because in that case the interpretation fits their pre-disposed views.

Finally there is this.

Bork was exactly the sort of choice serious-minded people should have welcomed. The Court had been in large measure the province of lightweights who were considered politically safe or somehow controllable, men who possessed no intellectual compass and were either the captives of their clerks or of the conventional wisdom. 

Could a more eloquent passage have ever been written about Clarence Thomas, Antonin Scalia or the other Conservative hacks who have sat or now sit on the Court?

And as far a bias against Conservatives for the Court is concerned, even Mr. Podhoretz has to acknowledge this historical fact.

Only a year earlier, Antonin Scalia had been affirmed by a 98-0 vote in the Senate,

and he conveniently leaves out the information that a number of Republicans voted against confirming Robert Bork for the Supreme Court.  But that’s the way Conservatives act in intellectual discussions, only the facts that are on their side are acknowledged.

Robert Bork was denied confirmation as a Supreme Court Justice.  Had he prevailed, and had his philosophy prevailed government would have had the power and authority to regulate every aspect of citizen behavior.  That could be called fascism, it could be called communism.  It could not be called democracy.