Apparently Judge Bork Has Died...There Has Been Not E-mail From The NYTimes Yet..

[Selene]

I just heard on a radio show from LA that I listen to that a great man, Judge Bork had passed away...

[BaalChatzaf]

I just heard on a radio show from LA that I listen to that a great man, Judge Bork had passed away...

I thought that Bork was a crypto-fascist.

He believed the government had interests beyond what was specified in the constitution. Also he opposed used 9 th amendment penumbra arguments.

In short he believed the rights you have are the rights you are given.

ruveyn

[Selene]

Robert:

I still think he was a great man.

Here is the NY Times announcement:

http://www.nytimes.com/2012/12/20/us/robert-h-bork-conservative-jurist-dies-at-85.html?emc=na&_r=0

Robert H. Bork, a former solicitor general, federal judge and conservative legal theorist whose 1987 nomination to the United States Supreme Court was rejected by the Senate in a historic political battle whose impact is still being felt, died on Wednesday. He was 85.

Jose R. Lopez/The New York Times

Robert H. Bork during confirmation hearings before the Senate Judiciary committee in 1987.

Mr. Bork’s death, of complications of heart disease, was confirmed by his son, Robert H. Bork Jr.

Mr. Bork, who was senior judicial adviser this year to the presidential campaign of Gov. Mitt Romney, played a small but crucial role in the Watergate crisis as the solicitor general under President Richard M. Nixon. He carried out orders to fire a special prosecutor in what became known as “the Saturday Night Massacre.” He also handed down notable decisions from the federal appeals court bench. But it was as a symbol of the nation’s culture wars that Mr. Bork made his name.

A...

[Selene]

Doesn't sound too cryptic or fascistic to me Bob...

He advocated a view of judging known as “strict constructionism,” or “originalism,” because it seeks to limit constitutional values to those explicitly enunciated by the Framers and to reject those that evolved in later generations. He dismissed the view that the courts had rightly come to the aid of those neglected by the majority. By contrast, he felt that majorities, through legislatures, should be empowered to make all decisions not specifically addressed in the Constitution.

He most famously took issue with the Supreme Court’s assertion in the 1960s and ’70s that the Constitution implicitly recognizes a right of privacy that bars states from outlawing abortion or the use of contraceptives by married couples.

That position along with his rejection of court-mandated help to minority groups led a coalition of liberal groups to push successfully for his Senate defeat, motivated in no small part by their sense that he cared more about abstract legal reasoning than the people affected by it. They contended that his confirmation would produce a radical shift on a closely divided Supreme Court and “turn back the clock” on civil and individual rights.

Here is how the ABA e-mail post I just received treated his death:

Conservative icon Robert Bork, whose views on strict constructionism were targeted in a failed Supreme Court nomination, has died at the age of 85.

Bork died early Wednesday from complications from heart disease, report the Washington Post and the New York Times. The Post describes Bork as “a major architect of the conservative rebuttal to what he considered liberal judicial activism.”

“In his writings and in debates on legal doctrine, the burly, bearded, chain-smoking ex-Marine was sharply confrontational,” the Post says. “But friends and enemies alike found him a man of great charm, compassion and intellect, with a wit so sharp a close friend once called it dangerous.”

Bork was a former federal appeals judge, law professor and solicitor general who carried out orders to fire Watergate special prosecutor Archibald Cox. Bork’s Supreme Court nomination failed in 1987 after opponents portrayed him as extremist. His comment that serving on the court would be an "intellectual feast" was criticized as indicating a lack of compassion for the people whose problems led to the court cases.

Bork advocated strict constructionism and originalism, the view that the Constitution should be interpreted based on the framers' values, the Times says. In particular, he opposed the view that the Constitution contained a right of privacy protecting a right to abortion or contraceptives.

The rejection of his Supreme Court bid led to the phrase "getting Borked" and changed the nominations process, the Times says. "The success of the anti-Bork campaign is widely seen to have shifted the tone and emphasis of Supreme Court nominations since then, giving them an often strong political cast and making it hard, many argue, for a nominee with firmly held views ever to get confirmed," its obituary says.

[Reidy]

The gist of what I read at the time of his nomination (don't remember the sources) was that Bork rejected natural rights philosophically. He thought that we ought to stick to the text of the Constitution because doing so is our only alternative to intellectual chaos and to tyranny; natural rights, being a bogus notion, won't tell us where to stop. That was the point of his notorious remark that the ninth amendment is like an inkblot. It has no more cognitive content and no more specificity

(The politicization of judicial nominations became a regular practice with Rehnquist, sixteen years before Bork. It had come up once before, but hadn't stuck, when Wilson nominated Brandeis.)

[BaalChatzaf]

Doesn't sound too cryptic or fascistic to me Bob...

Bork dissed the 9 th amendment. He believed the rights came only from the inkblots on the parchment.

He therefore held that rights come from the government.

Ba'al Chatzaf

[Selene]

Doesn't sound too cryptic or fascistic to me Bob...

Bork dissed the 9 th amendment. He believed the rights came only from the inkblots on the parchment.

He therefore held that rights come from the government.

Ba'al Chatzaf

Bob:

Your logic does not follow.

Bork is an originalist. He made a cutting remark about folks who read into the 9th amendment rights and powers that do not exist in the original document.

Woodrow Wilson, a crypto fascist progressive jettisoned Montague's natural rights and invented the living and breathing bullshit.

Find me a Bork statement wherein he states that rights come solely from the government.

A.

[Reidy]

The originals (whom the originalists claim to respect) wrote the ninth amendment. I don't see why an originalist would be any less willing to invoke and apply this part of the Constitution than he would any other. This is not to say that judges would always apply it correctly, any more they do any other provision, but that they would indeed be willing to apply it.

[Selene]

The originals (whom the originalists claim to respect) wrote the ninth amendment. I don't see why an originalist would be any less willing to invoke and apply this part of the Constitution than he would any other. This is not to say that judges would always apply it correctly, any more they do any other provision, but that they would indeed be willing to apply it.

Pete:

I could be wrong. However, I do not believe that he argued that it was not a valid amendment. I believe he argued that folks read whatever they wanted into it.

Hence the "famous," or, infamous comment as to the inkblots. He was known to have a savagely satirical wit.

I will have to research this.

A...

[BaalChatzaf]

Being an "originalist" means subjecting folks of today to a mortmain over 200 years old. Why should the dead govern the living?

Ba'al Chatzaf

[Selene]

Doesn't sound too cryptic or fascistic to me Bob...

Bork dissed the 9 th amendment. He believed the rights came only from the inkblots on the parchment.

He therefore held that rights come from the government.

Ba'al Chatzaf

Bob:

FYI

One sometimes runs across claims that Robert Bork dismissed the Ninth Amendment to the U.S. Constitution as an “ink blot” to be ignored — typically from libertarians who are criticizing this aspect of his judicial philosophy, or using it to criticize that philosophy generally. That’s not quite what he said, and what he did say is more than defensible.

The "inkblot," Ninth Amendment "story" about Bork's understanding of the Amendment stems from his Senate confirmation testimony when he answered DeConcini's question about it. Bork explained that:

...he did not know what the amendment meant — in context, I think he was saying he did not know with any degree of certitude. He said as well that 'most people say they do not know what it means.'

He explained that:

'The most sensible conclusion I heard was the one offered in the Virginia Law Review,' namely that the amendment was intended to clarify that guarantees of rights found in state constitutions were valid even if the Constitution did not explicitly guarantee those rights. 'That is the best I can do with it,' Bork added. In response to another DeConcini question, he said that he was open to historical evidence that might reveal the meaning of the amendment. He again said, 'I just do not know.'

The low life Democrat DeConcini "pressed him again, and Bork responded,"

I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says 'Congress shall make no' and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.

Later in the DeConcini savaging of the judge, he finished by "...casting doubt on the idea that the Framers intended that '...the court is just entitled to make up constitutional rights.'”

As to originalism and inkblots, Bork was quite clear, stating that:

The judge who cannot make out the meaning of a provision is in exactly the same circumstance as a judge who has no Constitution to work with. There being nothing to work with, the judge should refrain from working. A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past deciphering by an ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it.

Ramesh Ponnuru , the author of this article concludes, brilliantly, that:

Bork never claimed that the Ninth Amendment is unknowable; he merely said he was not sure of its meaning, although he found one interpretation of it plausible.

He said that there was no consensus about what the amendment means, which was certainly true at the time he said it. (Since then, and partly because of the controversy over his remarks, some more historical work and a lot more theorizing have been done.)

And he suggested that a legal provision the meaning of which is very unclear cannot be the basis for judicial action, especially the action of nullifying a duly enacted law.

He used the words “ink blot” in making that last point. That point was entirely correct, and indeed it is hard to imagine a plausible argument against it. I suspect the comment will live on, however, as a kind of Rorschach test revealing how those who quote it view judicial power.

Funny how a little context changes what you may have thought.

What do you think Bob?

A...

Post Script:

Pete, I hope this answers you questions also.

http://www.nationalreview.com/articles/336142/judge-bork-s-ink-blot-ramesh-ponnuru#

[PDS]

Being an "originalist" means subjecting folks of today to a mortmain over 200 years old. Why should the dead govern the living?

Ba'al Chatzaf

Ba'al:

I refuse to believe that you consider this a serious question.

Why should yesterday govern today?

[BaalChatzaf]

Being an "originalist" means subjecting folks of today to a mortmain over 200 years old. Why should the dead govern the living?

Ba'al Chatzaf

Ba'al:

I refuse to believe that you consider this a serious question.

Why should yesterday govern today?

Believe it. The Founders as wise and clever as they were, could not see infinitely far into the future.

They were not even clever enough to get rid of slavery before it led to the bloodiest war in our history.

As a general principle let the living govern the living.

Bob Kolker

[Selene]

Bob:

That argument is disingenuous.

You know it is.

A...

Post Script:

You seem to be not answering the Bork, inkblot, statement?

A...

[BaalChatzaf]

Bob:

That argument is disingenuous.

You know it is.

A...

Post Script:

You seem to be not answering the Bork, inkblot, statement?

A...

I know no such thing.

Everything in the constitution is an inkblot. As long as the courts can interpret it, it is an inkblot.

Ba'al Chatzaf

[Selene]

OK, that is clear.

Robert; I see there is no agreed area wherein we can have an argument.

Be safe.

This discussion/argument is over from my perspective.

A...

[Mikee]

If individual rights were up for reinterpretation every generation peace and prosperity would be impossible. No one could plan their future, thus they would not try. Even imperfect laws, if applied consistently over time, allow planning for a secure future.

[BaalChatzaf]

If individual rights were up for reinterpretation every generation peace and prosperity would be impossible. No one could plan their future, thus they would not try. Even imperfect laws, if applied consistently over time, allow planning for a secure future.

Stuck forever with out Constitution? Maybe. But revolution is possible?

And there is no guarantee our Bill of Rights cannot be repealed either explicitly or interpreted away by a corrupt judiciary.

Ba'al Chatzaf

[Mikee]

The Constitution is not just a bunch of ideas of dead people. Every day real living people swear to uphold the principles of the Constitution and even to give their lives doing so. You celebrate your own career of building weapons to insure the enemies of this countries are defeated. This country, the principles it was founded on, those written in the Constitution, must mean something that has lasting value for you. Perhaps I feel as Thomas Sowell, glad I'm not going to live long enough to see this all play out. It was a good idea though, but for hard working thinking people. Not for dead beat game playing gimme a handout looters and losers.

[BaalChatzaf]

The Constitution is not just a bunch of ideas of dead people. Every day real living people swear to uphold the principles of the Constitution and even to give their lives doing so. You celebrate your own career of building weapons to insure the enemies of this countries are defeated. This country, the principles it was founded on, those written in the Constitution, must mean something that has lasting value for you. Perhaps I feel as Thomas Sowell, glad I'm not going to live long enough to see this all play out. It was a good idea though, but for hard working thinking people. Not for dead beat game playing gimme a handout looters and losers.

Every day people swear to submit their lives to the will of the dead. The surely makes the Constitution a mortmain.

Ba'al Chatzaf

[Mikee]

Unless you are one of the .0001% or so of the population that creates something new virtually everything you do, say, use, consume, know, or believe in was conceived of, invented, evolved by dead people.

[BaalChatzaf]

Unless you are one of the .0001% or so of the population that creates something new virtually everything you do, say, use, consume, know, or believe in was conceived of, invented, evolved by dead people.

Have you seen your doctor recently Bob? I'm worried about you, your brain doesn't seem to be working as well as usual.

I have 20 original thoughts a day. All mine.

Ba'al Chatzaf