Jan 30, 2023·edited Jan 31, 2023Liked by Robert Reich
A few replies to Prof. Bork:
“How do you expect courts to measure political power?”
In an era decades before SCOTUS’s Citizens United decision, political power could be calculated by the dollar, and the government had the right to regulate corporations’ donations to insure that government did not become a wholly-owned subsidiary of those corporations.
“Employees are always free to find better jobs.”
So spoke a tenured-for-life professor who could be fired only for cause.
“Lower prices are good for consumers.”
Companies lower prices for one reason only: to build market share, ideally to the point that they acquire their competitors or force them to go out of business. At the point that they achieve overwhelming control of the market with no serious competitors, they then raise their prices. And raise their prices. And raise their prices.
“Also good for consumers. Large size means lower costs through efficiencies of scale.”
Efficiencies that are then passed on to shareholders in the form of dividends and stock buy-backs, and to top executives in the form of raises, bonuses and stock options. Lower prices do not follow lower costs as darkness follows day.
He had been a registered Socialist, worked for the Socialist Party but switched allegiances to Stevenson in 1952. At the time he was living in Chicago, in Stevenson's home state. He became an acolyte of .the Freedman/Ayn Rand school of economics while a student at the University of Chicago.
IMHO his fatal flaw was that he valued economics over everything else. He couldn't rationalize his socialist past and accept the cultural revolution of the '60's. .
He certainly wasn't the first a-hole offered to be a justice. It started when Madison appointed Alexander Wolcott who was rejected.
Abe Fortas, friend of LBJ, became the first Supreme Court justice to resign under threat of impeachment. LBJ tried to name him chief justice, but conservative senators mounted a filibuster using as a wedge issue Fortas’ acceptance of a $15,000 fee for a series of university seminars. When supporters could muster only 45 of the 59 votes needed to end debate, Fortas asked the president to withdraw his name — becoming the first nominee for that post since 1795 to fail to win Senate approval. Fortas resigned after it turned out in 1966 Fortas took a secret retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client subsequently imprisoned for securities violations. The deal provided that in return for unspecified advice, Fortas was to receive $20,000 a year for life. Embarrassed, disclosure of the retainer effectively ended Fortas’ judicial career.
Nixon appointed Haynsworth, opposed by a coalition of Democrats (possibly in retaliation for the Republicans' rejection of Fortas as Chief Justice), Rockefeller Republicans, and the NAACP. He was alleged to have made court decisions favoring segregation and of being anti-labor. Nixon nominated Carswell for the Supreme Court in 1970 after the Senate rejected his nomination of Clement J. Haynsworth in a battle over ethics and civil rights. The Senate rejected Carswell after reporters uncovered a speech in which he endorsed racial segregation as a legislative candidate in Georgia..
The Dork's supporters knew all of this. Ironically, many of them were and continue to be culture warriors. He opposed legalizing abortion, and the one-man, one-vote principle. He initially opposed what became the 1964 law guaranteeing blacks access to public accommodations, a keystone of the civil rights revolution. And he later defended Virginia’s poll tax, dismissing complaints that the tax discouraged black voting on the grounds that the tax was too small to have “much impact on the welfare of the nation.” So much for his socialist past.
Supreme Court justice confirmation hearings are a farce, and the Bork hearings are a good example. His roll in the Saturday night massacre was sufficient reason to deny Bork a seat on the court, but it wasn't the focus of the hearing.
The office of Supreme Court justice is an extremely political office. Many supreme court decisions are clearly attempts to rationalize and justify the justices' policy preferences. Yet candidates (both liberal and conservative) refuse to answer questions about how they would rule on pending cases on grounds that don't make much sense. The only way to end the charade wold be for senators of both parties to refuse to confirm a candidate who evaded policy questions. Fat chance.
Watching the confirmation hearings, one is struck by the fundamental dishonesty of all the candidates. They all claim that once on the court they will merely interpret the law, while even a cursory reading of many opinions shows that frequently the clear meaning of the statutes cited barely constrain their opinion at all. It's hard to have any respect for people who are either blatantly dishonest or completely blinded by confirmation bias.
What a truly fascinating read. I was unaware of your history with Bork. You have brought a nuanced understanding to his place in our political history. He never really understood the effect of power upon the disenfranchised. That attitude is what we "woke liberals" most despise, is it not? That the "entitled", or the "comfortable" among us simply are incapable of fathoming what their "objective" policies do to people not of their class or station or race. It's like they lack the empathy gene. Or, as is ceaselessly pointed out, these mostly "Christian" citizens who also espouse the erosion of the wall between church and state (with the aim of instilling "Judeo-Christian values" in our children at school) seem to have no clue what their proto-Christian hero actually preached. But you might say the same for other right wing luminaries, like William F. Buckley, for example. Clueless intellectuals without a heart.
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is, and is often the only, protector of the individual rights that are the heart of our democracy.”
Bork was absolutely the extremist Kennedy described, but like all of the extremists of the Reagan coterie -- the neo-Confederates who gave us the "Reagan Revolution" of tactical culture wars in service to the Republicans' strategic class war -- Bork carefully maintained a veneer of plausible deniability, including lip service to superficial approval of broadening civil rights. The only difference between Bork and Barr is that Barr's veneer is thinner and his abuse of power for the restoration and perpetuation of the United States' self-colonized principal organizing principle -- patriarchal White Christian totalitarianism -- is more transparent. Your view of Bork is far too generous based on your personal emotional proximity to him. He was a lying liar who was advancing White power even when he claimed it wasn't driving his ideology.
I liked this article Professor. While not fully understanding the issues at the time, the whole affair seemed somewhat off. And your article makes sense because you see through ideas and can look at the person and where they are coming from. We need more of that today. From my vantage, the Supreme Court Justice nomination fight with Robert Bork was not the cause of future incivility in our political discourse. Rather it was the excuse used to go full steam ahead with a policy of doing anything to achieve an end. I think even if Bork had been confirmed, we would be in a similar situation today with some other excuse being used to justify the same policy.
This is a wonderful essay! Thank you, Prof. Reich. There is great poignancy in the inability of the man for whom a new verb was created to comprehend the forces behind that verb.
As an aside. I am able to count on one hand the number of reporters and columnists who write about economics who actually have a degree or academic background in the field. Most of the people who write about it must be either learning on the job or just winging it?? Krugman comes to mind but he's the only one. If you know of anyone else I would be pleased to know.
Thank you for taking us back to the root of the matter with your own experience and your wisdom! This is not the first article in which you do this and I really appreciate how you have seamlessly threaded history for those of us who were born later, were too distracted by other things, or were born elsewhere.
I love reading about your experiences. The articles here would make a great basis for an autobiography. I also fully agree, from what I infer from your comments about several issues, with your moral philosophy. Although I too like some people with whose opinions I disagree (often vehemently), it's not easy; I think the nut to crack is identifying and understanding values. They come from deep inside and we have to garner the strength to constantly question and check them. Yes, Ted Kennedy went too far - for Bork. But his sentiments during that speech are my fears too.
Bork's inability and unwillingness to understand the cruelty, destructiveness, inequality, and stupidity in his world view was fundamental to people of his age group. What do you mean, not fair? He was asking. Not fair to whom? Blacks, women, Indians? They don't count. The appalling fact is how those stupid, cruel, etc views have regained the power.
Thank you for the enlightening perspective. Bork might have been treated unfairly in his Supreme Court confirmation hearing, but I don't think that alone marked the end of civil discourse in national politics and government. There was also Newt Gingrich in the House of Representatives agitating, successfully, with false and misleading accusations to have House Speaker Jim Wright removed from office.
If Bork thought dissatisfied or laid-off employees could easily find another job, he clearly did not anticipate non-compete agreements. Moreover, with a monopoly, there would be no other similar employer to move to. He may have been brilliant, but he seems to have lacked the imagination to envision the destructive nature of unchecked corporate power.
And if judges don't want to bother themselves with complex cases, then they should resign from the bench. As it is, these unelected judicial bureaucrats are substituting their uninformed opinions for the sound policies of those with expertise in their subject areas in Executive Branch agencies to unconstitutionally make government policy.
Open letter to the media,
Please stop broadcasting Trumps comments and speeches.
Trump manipulated people into participating in a violent insurrection to overthrow the government of the United States.
Doesn't that concern you????
Anytime Trump speaks publicly, it is for his own benefit.
He is trying to gain approval with the public in hopes that his next insurrection will succeed.
When his followers hear or see him in the media it boosts their confidence in him and makes them more apt to do what he wants them to do.
Every time you put one of Donald Trumps speeches or comments out to the public, you are participating in Trumps next insurrection attempt.
Please, With all due respect:
Stop giving Trump a megaphone.
A few replies to Prof. Bork:
“How do you expect courts to measure political power?”
In an era decades before SCOTUS’s Citizens United decision, political power could be calculated by the dollar, and the government had the right to regulate corporations’ donations to insure that government did not become a wholly-owned subsidiary of those corporations.
“Employees are always free to find better jobs.”
So spoke a tenured-for-life professor who could be fired only for cause.
“Lower prices are good for consumers.”
Companies lower prices for one reason only: to build market share, ideally to the point that they acquire their competitors or force them to go out of business. At the point that they achieve overwhelming control of the market with no serious competitors, they then raise their prices. And raise their prices. And raise their prices.
“Also good for consumers. Large size means lower costs through efficiencies of scale.”
Efficiencies that are then passed on to shareholders in the form of dividends and stock buy-backs, and to top executives in the form of raises, bonuses and stock options. Lower prices do not follow lower costs as darkness follows day.
Sorry Robert, but Bork was a dork.
He had been a registered Socialist, worked for the Socialist Party but switched allegiances to Stevenson in 1952. At the time he was living in Chicago, in Stevenson's home state. He became an acolyte of .the Freedman/Ayn Rand school of economics while a student at the University of Chicago.
IMHO his fatal flaw was that he valued economics over everything else. He couldn't rationalize his socialist past and accept the cultural revolution of the '60's. .
He certainly wasn't the first a-hole offered to be a justice. It started when Madison appointed Alexander Wolcott who was rejected.
Abe Fortas, friend of LBJ, became the first Supreme Court justice to resign under threat of impeachment. LBJ tried to name him chief justice, but conservative senators mounted a filibuster using as a wedge issue Fortas’ acceptance of a $15,000 fee for a series of university seminars. When supporters could muster only 45 of the 59 votes needed to end debate, Fortas asked the president to withdraw his name — becoming the first nominee for that post since 1795 to fail to win Senate approval. Fortas resigned after it turned out in 1966 Fortas took a secret retainer from the family foundation of Wall Street financier Louis Wolfson, a friend and former client subsequently imprisoned for securities violations. The deal provided that in return for unspecified advice, Fortas was to receive $20,000 a year for life. Embarrassed, disclosure of the retainer effectively ended Fortas’ judicial career.
Nixon appointed Haynsworth, opposed by a coalition of Democrats (possibly in retaliation for the Republicans' rejection of Fortas as Chief Justice), Rockefeller Republicans, and the NAACP. He was alleged to have made court decisions favoring segregation and of being anti-labor. Nixon nominated Carswell for the Supreme Court in 1970 after the Senate rejected his nomination of Clement J. Haynsworth in a battle over ethics and civil rights. The Senate rejected Carswell after reporters uncovered a speech in which he endorsed racial segregation as a legislative candidate in Georgia..
The Dork's supporters knew all of this. Ironically, many of them were and continue to be culture warriors. He opposed legalizing abortion, and the one-man, one-vote principle. He initially opposed what became the 1964 law guaranteeing blacks access to public accommodations, a keystone of the civil rights revolution. And he later defended Virginia’s poll tax, dismissing complaints that the tax discouraged black voting on the grounds that the tax was too small to have “much impact on the welfare of the nation.” So much for his socialist past.
Supreme Court justice confirmation hearings are a farce, and the Bork hearings are a good example. His roll in the Saturday night massacre was sufficient reason to deny Bork a seat on the court, but it wasn't the focus of the hearing.
The office of Supreme Court justice is an extremely political office. Many supreme court decisions are clearly attempts to rationalize and justify the justices' policy preferences. Yet candidates (both liberal and conservative) refuse to answer questions about how they would rule on pending cases on grounds that don't make much sense. The only way to end the charade wold be for senators of both parties to refuse to confirm a candidate who evaded policy questions. Fat chance.
Watching the confirmation hearings, one is struck by the fundamental dishonesty of all the candidates. They all claim that once on the court they will merely interpret the law, while even a cursory reading of many opinions shows that frequently the clear meaning of the statutes cited barely constrain their opinion at all. It's hard to have any respect for people who are either blatantly dishonest or completely blinded by confirmation bias.
What a truly fascinating read. I was unaware of your history with Bork. You have brought a nuanced understanding to his place in our political history. He never really understood the effect of power upon the disenfranchised. That attitude is what we "woke liberals" most despise, is it not? That the "entitled", or the "comfortable" among us simply are incapable of fathoming what their "objective" policies do to people not of their class or station or race. It's like they lack the empathy gene. Or, as is ceaselessly pointed out, these mostly "Christian" citizens who also espouse the erosion of the wall between church and state (with the aim of instilling "Judeo-Christian values" in our children at school) seem to have no clue what their proto-Christian hero actually preached. But you might say the same for other right wing luminaries, like William F. Buckley, for example. Clueless intellectuals without a heart.
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is, and is often the only, protector of the individual rights that are the heart of our democracy.”
Bork was absolutely the extremist Kennedy described, but like all of the extremists of the Reagan coterie -- the neo-Confederates who gave us the "Reagan Revolution" of tactical culture wars in service to the Republicans' strategic class war -- Bork carefully maintained a veneer of plausible deniability, including lip service to superficial approval of broadening civil rights. The only difference between Bork and Barr is that Barr's veneer is thinner and his abuse of power for the restoration and perpetuation of the United States' self-colonized principal organizing principle -- patriarchal White Christian totalitarianism -- is more transparent. Your view of Bork is far too generous based on your personal emotional proximity to him. He was a lying liar who was advancing White power even when he claimed it wasn't driving his ideology.
Robert, that was one of your best letters. Thanks so much for your rememerance of this complex man.
I liked this article Professor. While not fully understanding the issues at the time, the whole affair seemed somewhat off. And your article makes sense because you see through ideas and can look at the person and where they are coming from. We need more of that today. From my vantage, the Supreme Court Justice nomination fight with Robert Bork was not the cause of future incivility in our political discourse. Rather it was the excuse used to go full steam ahead with a policy of doing anything to achieve an end. I think even if Bork had been confirmed, we would be in a similar situation today with some other excuse being used to justify the same policy.
This is a wonderful essay! Thank you, Prof. Reich. There is great poignancy in the inability of the man for whom a new verb was created to comprehend the forces behind that verb.
As an aside. I am able to count on one hand the number of reporters and columnists who write about economics who actually have a degree or academic background in the field. Most of the people who write about it must be either learning on the job or just winging it?? Krugman comes to mind but he's the only one. If you know of anyone else I would be pleased to know.
Thank you for taking us back to the root of the matter with your own experience and your wisdom! This is not the first article in which you do this and I really appreciate how you have seamlessly threaded history for those of us who were born later, were too distracted by other things, or were born elsewhere.
Mr. Reich,
I love reading about your experiences. The articles here would make a great basis for an autobiography. I also fully agree, from what I infer from your comments about several issues, with your moral philosophy. Although I too like some people with whose opinions I disagree (often vehemently), it's not easy; I think the nut to crack is identifying and understanding values. They come from deep inside and we have to garner the strength to constantly question and check them. Yes, Ted Kennedy went too far - for Bork. But his sentiments during that speech are my fears too.
How is it that intelligent people such as Bork can be so ignorant?
One only needs to open their eyes to plainly see the evidence before them.
This current Gilded Age is severely undermining our Democratic Republic.
Who will the winners be?
Contrary to Mitch McConnells claim that the future will take care of itself, our future is very much dependent on what we do today, in the present.
Bork's inability and unwillingness to understand the cruelty, destructiveness, inequality, and stupidity in his world view was fundamental to people of his age group. What do you mean, not fair? He was asking. Not fair to whom? Blacks, women, Indians? They don't count. The appalling fact is how those stupid, cruel, etc views have regained the power.
Thank you for the enlightening perspective. Bork might have been treated unfairly in his Supreme Court confirmation hearing, but I don't think that alone marked the end of civil discourse in national politics and government. There was also Newt Gingrich in the House of Representatives agitating, successfully, with false and misleading accusations to have House Speaker Jim Wright removed from office.
If Bork thought dissatisfied or laid-off employees could easily find another job, he clearly did not anticipate non-compete agreements. Moreover, with a monopoly, there would be no other similar employer to move to. He may have been brilliant, but he seems to have lacked the imagination to envision the destructive nature of unchecked corporate power.
And if judges don't want to bother themselves with complex cases, then they should resign from the bench. As it is, these unelected judicial bureaucrats are substituting their uninformed opinions for the sound policies of those with expertise in their subject areas in Executive Branch agencies to unconstitutionally make government policy.
Ted Kennedy was prescient. Maybevwrong about Bork, but we are headed that way now.