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Adam Winkler

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Romney's Bork Barrel Politics

Posted: 08/10/11 12:09 PM ET

Last week, Republican presidential candidate and frontrunner Mitt Romney announced his legal policy team. This group of lawyers will advise Romney on a variety of legal questions, including regulatory issues, the scope of executive power, and, most significantly, judicial nominations. The team is quite large -- 63 people -- and includes a number of notable lawyers and legal scholars who will provide the candidate with practical advice about how to handle any number of issues.

Yet the real importance of the legal team is found in the man Romney chose as co-chair: Robert Bork.

Most people remember Robert Bork mainly for his failed bid to become a Supreme Court justice. He was nominated by Ronald Reagan in 1987 but the Senate rejected his nomination after a contentious debate that focused on Bork's archconservative legal views. Not only did Bork oppose the right of women to choose abortion, he thought the Constitution didn't even protect the right of married couples to use birth control. He argued for an extremely limited freedom of speech -- only political speech was protected, not artistic speech -- and for unusually expansive executive powers. A proponent of a strong view of states' rights, he even supported the right of southern states to impose poll taxes on voting despite the clear racially discriminatory purpose and effect of such measures.

Since then, Bork has advocated for renewed limits on the power of Congress, promoted the idea of super-majorities in Congress to "nullify" binding Supreme Court precedent, and complained about the expansion of gay rights. Bork is, in some ways, the intellectual leader of the Tea Party's legal vision.

And that's exactly why Romney chose him. Having Bork head up his legal team sends a message to Republican primary voters that Romney is a True Conservative. As a former governor of that bastion of liberalism, Massachusetts, Rommey is widely perceived by many conservatives as too moderate. The Tea Party, however, is the engine of the Republican party right now. Because primaries empower the most extreme elements of each party, Romney knows that he must appeal to the Tea Party to stand any chance at the nomination.

Romney has a major defect from the point of view of the Tea Party: healthcare -- or, as some Tea Party members refer to it, "RomneyCare." When he was governor, Romney supported a state overhaul of healthcare that included an individual mandate very similar to the one included in the federal healthcare reform law passed last year. Arguably the most important legal issue in the Tea Party today is the individual mandate, which they view as proof of government grown too big and too invasive of individual rights.

Ask him and Romney will tell you that he opposed the federal healthcare reform. Given his own support of a similar law in Massachusetts, however, his claim rings hollow.

No doubt Romney hopes that having his legal team headed up by Bork, who is so beloved by the right, will quiet some of the complaints from the Tea Party. If you were worried about my views of the Constitution, he's telling the Tea Party, you have nothing to be concerned about. I'm with you.

While Romney's choice sends a political message to conservatives, independents and liberals should also be paying close attention. Many of the latter like Romney precisely because they see him as a moderate Republican with a good business sense and a proven ability to work across the aisle. His selection of Robert Bork, however, should be a reminder that a Romney presidency will be a serious threat to the right of privacy and the other civil liberties Democrats and Independents hold dear.

Romney's shift to the legal right should be especially salient given the possibility that the next president will choose Justice Ruth Bader Ginsburg's replacement. At 78 years old and having battled cancer, Ginsburg is the Supreme Court justice most likely to retire between now and 2016.

If Romney is the one making that choice, Robert Bork will have his ear. That may not be enough to lower suspicions about Romney on the far right, but it should be enough to convince liberals and independents to be worried -- unless, of course, they want someone with Robert Bork's views sitting on the Supreme Court.

 

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Gasparilla
there is no clean coal
10:38 AM on 08/13/2011
I remember Bork being asked in his confirmation hearings about his support of the poll tax. He tried to downplay it by saying it was no big deal because it was only like a buck fifty per person. But for a couple, and this was the early sixties, it could have been the difference between groceries for dinner and voting.
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abhorson
in favor of legalized bar fighting
04:28 PM on 08/13/2011
I answered the part of the "poll tax" earlier but didn't post .. here goes AGAIN.

It was, like you say, 1.50$ which you would have to pay - every 2 years. So, perhaps groceries for one dinner in two years. Also, that Virginia statute allowed exemption to that 1.50$ tax IF you filed a residence form 6 months in advance - that too got "shot down" because it was ruled it didn't apply equally (since it didn't apply IF you paid the 1.50$.

A tax of 1.50$ every two years cannot possibly be seen as DISCRIMINATORY. There are lots of white people as well, and the law applied to anyone. Plus, the tax is SO LOW that it hardly could cause ANYONE not to vote.

Lastly - Justice Hugo Black (a DEMOCRAT) dissented in that decision - stating that the SC had allowed poll taxes as long as they were reasonable and not discriminatory for 50+ years.

Even if you HONESTLY think a 1.50$ tax is "high" and could hurt someone ... believing that it is "reasonable" does not make you a racist !!!
Gasparilla
there is no clean coal
06:41 PM on 08/13/2011
But few whites were as poor as blacks at that time. And you just assume it was every two years, when there were also primaries and other elections. Lots of southern states also used literacy tests, which meant blacks would be disproportionally affected. It's nice to have your assurance that hardly anyone could not get to vote. Any way you wish to portray it, when you have a basic right guaranteed by the constitution up for sale, then that is not correct. I don't care who else was for it.
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abhorson
in favor of legalized bar fighting
02:36 AM on 08/13/2011
and with Bork went to hell state's rights... and instead we got 25 years of judicial nominees who don't say anything except dribble through all the questions put forward.

oh yeah, and the end of any civility in the Congress... thanks JB...
HUFFPOST PUNDIT
noaxe397
09:35 AM on 08/11/2011
It needs to be gently suggested to Justice Ginsburg she leave in time for Obama to chose her replacement before the senate flips in 2012.
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HUFFPOST SUPER USER
Lark817
expat in Mexico
02:36 PM on 08/11/2011
Great idea. I love seeing TP'ers froth at the mouth. Knowing our President, however, he'd probably go for instant appeasement by appointing an extreme right-winger. I am a lib and a dem but I worry our president is so soft, he won't have anyone left to vote for him.
04:59 AM on 08/11/2011
I wish Ralph Nader would join the race just for the sake of a sane argument....(without corporate money)
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Totto
"Not 'Noise' One Round: *Music*
09:22 AM on 08/11/2011
Mr. Nader is 77.
01:52 PM on 08/11/2011
Like Ron Paul....
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HUFFPOST PUNDIT
BlackJAC
It's better to be a black king than a white knight
09:42 AM on 08/11/2011
The last time Nadir ran we got Dubya. Request denied.
HUFFPOST SUPER USER
Jim Pasterczyk
Banned!
04:08 AM on 08/11/2011
Yes, a True Conservative who simply follows orders instead of asking whether they're legal. For instance, that whole firing-the-Watergate-special-prosecutor thing.
HUFFPOST PUNDIT
noaxe397
09:31 AM on 08/11/2011
Not to defend the guy's perverse legal views, but he did offer to resign rather than fire Cox, but Elliot Richardson thought that would create the impression of total anarchy if EVERYONE resigned, so he asked Bork to stay on and Bork agreed and was left holding the bag in terms of being the heavy that history remembers.
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Mark MacDonald
Pass the Scotch
07:54 PM on 08/10/2011
I like Judge Ginsburg but the time for her to retire is now. Forget about Bork. This is just another dog and pony show by the ever changing Romney. Even Romney cannot predict what President Romney will stand for, but for that matter, President Obama seems unable to predict what President Obama will do. I think I will stay drunk until the next election is over.
HUFFPOST SUPER USER
chickline
06:44 PM on 08/12/2011
I might remain in that state for the next four years unless I can find an island someplace to hide.
07:39 PM on 08/10/2011
A liberal professor at a college? I am shocked.
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Jim Pasterczyk
Banned!
04:09 AM on 08/11/2011
Don't worry, you can still send your kids to Patrick Henry, Liberty, Regent, or Oral Roberts; just don't expect them to learn much there that isn't approved by the Conservapedia.
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abhorson
in favor of legalized bar fighting
03:14 AM on 08/13/2011
that he's liberal is neither a shocker nor a problem ... that he keeps (constantly) commenting on political issues tells me he's angling for an appointed job somewhere - or - looking for invites to wine and cheese parties where he can pretend-be-smart.
HUFFPOST SUPER USER
MoreFreedom
07:19 PM on 08/10/2011
Bork doesn't represent the Tea Party, he's a social conservative. And neither does Romney.

Conservatives have a choice in the 2012 presidential primaries. They can follow the money (Romney - recipient of campaign cash from rent seekers) or they can follow the constitution.
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HUFFPOST SUPER USER
wonderYrednow
ÂżY read backwards?
07:44 PM on 08/10/2011
Most haven't read the Constitution, let alone know where it will lead us.
HUFFPOST SUPER USER
Jim Pasterczyk
Banned!
04:10 AM on 08/11/2011
They prefer the Articles of Confederation anyway if only because it uses the same root as the Confederate States of America.
HUFFPOST SUPER USER
efmo
Oh no, my micro-bio is empty!
04:32 PM on 08/10/2011
What this article misses is that Bork is actually one of the biggest supporters of corporate rights out there - it was his twisted interpretation of US anti-trust laws that have led to the incredible power of a handful (and in retail - one) corporations to run the US and with US military support, US IMF & US World Bank - a lot of the rest of the world.
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HUFFPOST SUPER USER
wonderYrednow
ÂżY read backwards?
07:45 PM on 08/10/2011
He would have been worse that Coke can Thomas, but not much.
04:15 PM on 08/10/2011
Yea lets all vote what we got! Lets all shave our heads and beat ourselves with a stick! Change is needed, and it's across the board, including the PREZ!
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HUFFPOST SUPER USER
wonderYrednow
ÂżY read backwards?
07:45 PM on 08/10/2011
When you are wrong, you must be 'Right'.
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HUFFPOST SUPER USER
fozzi58
I want my country back
03:50 PM on 08/10/2011
Its such a far fetched idea, but I would love to put these people in office and show the GOP & Teabagger Supports what its like when the inmates run the asylum. (virtually of course). If we do it for real, we will certainly cut off our nose to spite our face.

Too bad Sim City doesn't have downloadable characters with traits like Romney.
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HUFFPOST PUNDIT
BlackJAC
It's better to be a black king than a white knight
08:06 PM on 08/10/2011
Tropico kinda sorta does, though.
02:39 PM on 08/10/2011
Romney is a DINO. The GOP needs a real conservative. I like Bachman. I'm not interested in her religion .. but she seems like a real fiscal conservative. We need a President who can JUST SAY NO!
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HUFFPOST SUPER USER
ConcernedProgressive
liberal, sarcastic, cream cheese in everything
03:27 PM on 08/10/2011
If you aren't interested in her religion, how can you also support her? Everything that she does, believes and says is governed by her religion. And if she became the President, you would be governed based on her religion as well.
07:21 PM on 08/10/2011
But she does not believe in freedom. She wants to deprive me of my right to get married.
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HUFFPOST COMMUNITY MODERATOR
frappe
Earth is basically a planet-based space ship.
02:13 PM on 08/10/2011
Hiring Bork makes Romney a "true conservative"?...He'll always be a true phony to me.
07:18 PM on 08/10/2011
Republicans are masters of PR. They'll do miracles re-making his public image, after he wins the primaries.
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HUFFPOST SUPER USER
Lark817
expat in Mexico
09:30 PM on 08/10/2011
It seems more and more they don't bother. The could try to make Romney look better but I'll bet they spend more time trying to make President Obama look worse..
12:33 PM on 08/10/2011
Romney taking on Robert Bork as co-chair is probably the loudest Dog Whistle that Romney has yet tooted for the far-right, "ideological" and "movement" conservatives. He's trying so hard to preserve his "moderate, measured" appearance while pandering to the far-right that spurned him last time out.

"He's got Robert Bork on his team... GASP... he's one of US?"
05:25 PM on 08/11/2011
Robert Bork was a big name more than 20 years ago. Does the current crop of ideologues even know who he is? After all, he didn't write in soundbites.
08:19 AM on 08/12/2011
Oh they certainly do.

Robert Bork has been BUSY in the last 20 years, and he is a celebrated ICON for the far-right of the GOP.

He works out the American Enterprise Institute, your all-purpose, standard-issue far-right "Think Tank," he's written one or two books that are savory red-meat attacks on Liberalism & Moral Decline, publishes all kinds of GOP "crowd pleasing" assaults on the judiciary and on far-right "hot topics," he is an absolute Top Tier Celebrity Speaker at all manner of far-right symposia and conferences and such.

That's why I say, Robert Bork is a GOP "Dog Whistle." The true believers all hear the whistle being blown and applaud Mitt Romney, but the majority of folks don't ever notice, don't even hear it.
11:46 AM on 08/10/2011
It's just another example of Romney pandering to whomever he can to make himself look to be something he's not. He's a phoney through and through.
07:20 PM on 08/10/2011
But aren't they all? Wasn't Gingrich quoted by a former girlfriend as saying that his "family-values" were for other people, but not for himself?
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HUFFPOST SUPER USER
Lark817
expat in Mexico
09:29 PM on 08/10/2011
Yes he was but it was his former wife.