Romney Judicial Advisor Robert Bork: Civil Rights Act Is ‘Unsurpassed Ugliness,’ But Criminalizing Contraception Use Is OK

Yesterday, former Massachusetts Gov. Mitt Romney (R) announced Robert Bork will co-chair his presidential campaign’s “Justice Advisory Committee.”

President Ronald Reagan nominated Bork to serve as an Associate Justice of the United States Supreme Court in 1987 to replace Justice Lewis Powell. President Reagan, a staunch conservative, had already appointed two justices -- moderate Sandra Day O'Connor in 1981 and conservative Antonin Scalia in 1986, the latter at the same time that William Rehnquist, also a conservative, was named to replace the retiring chief justice, Warren Burger.

Right-wing backers of the Pres. Reagan had been disappointed in 1981 when Reagan chose the more moderate O'Connor over Bork, but accepted the fact that O'Connor's nomination was Reagan keeping of a campaign promise to put the first woman on the Court. But, for Powell's replacement ultra-conservatives pressured the Reagan White House to nominate Judge Robert Bork, a known conservative then serving on the District of Columbia Federal Court of Appeals.

In his five days of confirmation hearing testimony before the Senate Judiciary Committee -- the longest confirmation hearing for any Supreme Court nominee since hearings began in 1939 -- Bork surprised everyone. He modified many of his most controversial views.

In 1971 Bork had argued that constitutional protection of free speech applied only to that which was political in nature, in his 1987 confirmation hearing Bork conceded that First Amendment guarantees applied to news, opinion, literature and more.

Bork had also previously claimed that the "equal protection" clause of the Fourteenth Amendment should apply only to racial and not gender discrimination, but during the hearing he stated that equal protection should in fact apply also to women.

Bork's approach to the hearing was in keeping with the decision by the White House to avoid an ideological fight and tout the nominee as a moderate. This soft sell did not sit well with Bork's supporters, his detractors, or the undecided senators. The several controversial constitutional conservative arguments Bork had made in the years prior to his Senate confirmation hearing include:

• Opposition To Civil Rights: One year before President Lyndon Johnson signed the Civil Rights Act of 1964, which banned whites-only lunch counters and other forms of discrimination, Bork criticized the Act as a moral abomination. “The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.”
• No Right To Contraception: In Griswold v. Connecticut, the Supreme Court held that married couples have a constitutional "right of privacy" to receive information about and use contraception — a decision that was later extended to all couples, married or not. Bork called the courts finding that the constitution grants a "right of privacy" to American citizens, “utterly specious” and a “time bomb.” Roe v. Wade and several other right to privacy court decisions are supported by the Griswold constitutional "right of privacy" finding.
  
• Banning Porn, Art and Science : Bork also called for shrinking the size of the First Amendment until it is small enough to be drowned in a bathtub. “Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”
• Believes Government Can Criminalize Sex: In its landmark Lawrence v. Texas decision, the Supreme Court reached the obvious conclusion, based in its precedent setting Griswold v. Connecticut right of privacy finding that it is none of the government’s damn business who anyone is having sex with — overruling a previous decision in Bowers v. Hardwick. Bork, however, wrote that “Bowers v. Hardwick, which upheld the community’s right to prohibit homosexual conduct, may be a sign that the Court is recovering its balance . . . . I am dubious about making homosexual conduct criminal, but I favor even less imposing rules upon the American people that have no basis other than the judge’s morality.”
• No Constitutional Protection for Women: Bork also claimed that the Constitution does not shield women from gender discrimination. In Bork’s words, “I do think the equal protection clause probably should be kept to things like race and ethnicity.”

On October 6, the Judiciary Committee voted 9 to 5 against confirming Bork and most of the judge's supporters, realizing that a full vote in the Senate would also go against Bork, expected him to withdraw his name for consideration by the full Senate. Bork, however, announced he would continue the fight stating, "A crucial principle is at stake," articulating his view that the judicial selection process should not be corrupted by the political process and the opposition being waged against him. On October 23, the Senate rejected Bork’s Court nomination in a bipartisan 58-42 vote, but in the years hence Bork emerged as the slain martyr at the center of the conservative judicial movement. The more moderate Anthony Kennedy ultimately replaced Bork as President Reagan's Court nomination.

Four of the Supreme Court’s current members are over age 70. One of these justices is a cancer survivor. So who ever takes the oath of office in 2013 could have the opportunity to fill several court positions.

Bork’s involvement in Romney's Presidential campaign may help prove Romney’s hard right credentials in the face of his decision to ensure that all people in his state enjoy access to affordable health care.

But, with Bork now named by Romney as one of his chief judicial advisers, the American people have a right to know whether Romney shares any of Bork’s previously expressed positions on civil rights, the rights of women, and how far government may intrude into our bedrooms, classrooms, art galleries and laboratories.

In Short - Does Romney agree with the conservative "strict constructionist" position argued by Robert Bork and other conservatives that the U.S. Constitution does not grant American citizens a "right to privacy" from federal, state and local government dictates and intrusion into home and family?

See: Conservative "strict constructionist" judicial movement over the last 50 years.