Alito on Bork

[LexNaturalis1982]

0:28 Not true

0:31 The states and their constitution determine voting law not the federal government.

0:45 R v. Wade was a horrible descision as abortion fell to the states under the 10th amendment.

1:00 warrentless spying on the people is unconstitutional

[druther28]

@1:39 I checked my e-mail.

[writersblock26]

Thank you for posting this, jhmasdeu.

[Zakariah1971]

Great answer!

[shaqdaddy11]

Robert Bork is a brilliant man. Jokers like Biden and Kennedy couldnt come near him on a legal debate.

[Albyiscool]

So rather than having a legal discussion on Bork's decisions, this clown is just reading off his opinions on a list, as if the views of the conservative boogeyman are so outlandish and illegitimate because just enough people might disagree with them to justify voting against Alito

[slapshot01j]

justice scalito

[genYprogressive]

Why should anybody be surprised, what would they expect from a Radical Activist Judge like Alito.

[jeffcoolstuff]

i dont know much about bork but man he looks evil

[mattreedah]

Bork was the greatest nominee high court ever had--i blame Kennedy and Biden.

[3684541]

@mattreedah I agree, wholeheartedly.

[iown813]

@mattreedah they loathed Bork because he wasn't an liberal activist judge

[Einsteinbomb]

@iown813

They loathed Robert Bork because he was a racist and believed condoms and birth control to be illegal.

[FAHayek89]

@Einsteinbomb No, Bork didn't believe condoms or birth control to be illegal. He believed that the Constitution had nothing to say about condoms or birth control, thus the federal government had no authority either to ban or protect them. You may disagree with that position, but it is very different from the one you present.

[Einsteinbomb]

@FAHayek89

Robert Bork was a religious affiliated Attorney General under the Nixon Administration. This exact same ideology was present in his nomination. Robert Bork as affiliated with established religion didn't believe in the use of contraceptives as the church believe it was immoral. He would of no doubt prohibited contraceptives and allowed the states to decide, so if you lived in Alabama or Texas you were shit out of luck.

[FAHayek89]

@Einsteinbomb So which is it? Would he have prohibited them or allowed the states to decide. My point is that those are two seperate arguments and two different legal positions. The results might be the same in some states, but the legal reasoning is vastly different.

[Einsteinbomb]

@FAHayek89

There is no doubt he would have prohibited contraceptives at the federal level if a case ever came to his discretion. But, if a case never arose to the U.S. Supreme Court he would of supported states rights to band them. Our conversation is like abortion with the Conservatives. They believe in states rights to ban abortion, but if the Supreme Court ever received another opportunity to overturn Roe v. Wade Conservative would vastly support a federal opinion to overturn Roe v. Wade.

[FAHayek89]

@Einsteinbomb Your assumptions about both issues lack any sort of grounding in court opinion. Some supposed "conservatives" (maybe Sarah Palin?) might believe the court ought to ban abortion, but the right of the court – the only body that matters -- has never indicated any such thing. Scalia, Thomas, and Rehnquist were repeatedly clear in their decisions that it was a state issue per the 10th Amend. Do you have some evidence that Alito and Roberts are dramatically different in that respect?

[Einsteinbomb]

@FAHayek89

Conservatives like Bork believe in the Tenth Amendment to a point until they relinquish states in favor of a federal ruling when deemed convenient. That is until they get a chance to overrule Roe v. Wade. It's not a matter of speculation that Bork would of overturn Roe v. Wade it was his intention according to documents he had during the Reagan Administration. While Alito and Roberts probably won't overturn it on the matter of mainstream society, nobody could really say for sure.

[FAHayek89]

@Einsteinbomb Yes, but you still miss the fundamental distinction. Overturning Roe is simply is not the same as making abortion illegal. I cannot speak to what Bork would do as he never had the chance, but clearly, the Casey dissents by Rehnquist and Scalia would NOT have made abortion illegal, but would have returned the issue to the states - a significant distinction, and a position that arguably has more firm grounding in the text of the Constitution than current law.

[Einsteinbomb]

@FAHayek89

Overturning Roe v. Wade wouldn't make it entirely illegal but it would result in illegal restrictions in many states. So, both yes and no in this case. And the only reason Planned Parenthood v. Casey resulted in enacting the law again was because of Justice Kennedy. If Kennedy wasn't on board it was going to be a guaranteed reversal of the illegal and the trigger laws in many states would take effect proclaiming it illegal. Not at the federal level but definitely in the South.

[FAHayek89]

@Einsteinbomb There is nothing in the text Constitution that would indicate that abortion ought to be a federal level issue, or that the federal government has the authority either to protect it or ban it. Only the most convoluted reading of the "penumbra" of the 14th Amend. could find otherwise, whereas the very clear text of the 10th Amend. would indicate it is a state issue. States may make the wrong decision, but that alone does not negate their rights as explicitly stated in the Const.

[FAHayek89]

In no way, however, is that the legal equivalent of the court banning abortion.

[Einsteinbomb]

@FAHayek89

True the Constitution states nothing about abortion at the federal level by the use of federal bills. But, it doesn't ban it either through judicial review. Remember Marbury v. Madison. Although the pretext was to create the law was under the right to privacy. Which is also not stated but interpreted in the Constitution was the basis for Roe v. Wade thus, credibly upholding abortion as legal.

[FAHayek89]

@Einsteinbomb The court never argued in Marbury that it could usurp the legislative power of the Congress or the states. It did not claim law making ability. The theory of judicial review holds that it can review laws and invalidate them IF they contradicted the Const. Nor will you find the word privacy anywhere in the Const. As you say, the Const. provide no base to protect abortion, but the 10th Amend. clearly delegates unstated powers to states. Judicial review is irrelevant.

[Einsteinbomb]

@FAHayek89

Wrong. Marbury v. Madison directly resulted in judicial review. That's why the Court could invalidate Congressional Laws. The court basically granted itself a power not delegated to itself by this case. It's called Judicial Activism. And, true the Constitution is not directly stated in our Constitution but it is interpreted by the Necessary and Proper Clause(Elastic Clause). Basis for Roe v. Wade.

[FAHayek89]

@Einsteinbomb I'm not disputing judicial review. I'm explaining to you that judicial review is not an open fiat for the court to do whatever it feels is best (as you seem to think), but instead, the right of the court to determine the constitutionality of legislation. The court can only act through the Constitution. That is, the court, under judicial review, can nullify laws because they are unconstitutional, not because they are good or bad.

[FAHayek89]

@Einsteinbomb As far as the necessary and proper clause, I’d suggest you go back and look at the decision in Roe. The court relied not on the necessary and proper clause, but on a convoluted reading of the due process clause of the 14th Amend. (By your reading, what, by the way, would the limits on the necessary and proper clause be? Could Congress or the Court do something that was in direct violation of the Bill of Rights if it was “necessary and proper?”)

[Einsteinbomb]

@FAHayek89

Yes, the Fourteenth Amendment was also used for part of the decision. But, most of the Justices including Burger ruled on the precedent of Privacy interpreted in the Necessary and Proper Clause.

[Einsteinbomb]

@FAHayek89

Yes, you're correct. That was the previous intention of our Constitution but the courts have proven this not the case. Courts have ruled on many bills and lower ruling on biased opinions rather than set Constitutional Standard.

[FAHayek89]

@Einsteinbomb I take it, however, that you have conceded the point that overturning Roe would not in itself make abortion illegal, but would turn the issue back to the states. I understand that you don't believe it ought to be overturned, but can I assume that you distinguish between: 1. overturning Roe and removing abortion from federal jurisdiction; and 2. the court banning abortion on the federal level; and that you acknowledge that option 1 is the choice of the current right of the court?

[Einsteinbomb]

@FAHayek89

But three Justices ruled on Due Process Clause as being the basis for the decision I'll give you that.

[jpsartrean]

@Einsteinbomb This is a gross and wholly inaccurate characterization of Bork. He supported the ruling of Brown v. Board and rebuked his prior criticisms of Shelley v. Kramer. If you watch the Bork hearings (available on the C-Span website) I think you would change your opinion...

[Einsteinbomb]

@jpsartrean

Solicitor General Bork was a racist. He believed that poll taxes in the south were necessary as well as literacy tests to keep blacks from voting. He didn't care to believe in privacy in the Constitution even though previous precedent saw a broad protection of privacy in the Constitution. And, abortion and contraceptives he believed were up to states to decide upon. In which many Souther Conservative states would of vastly banned contraceptives and abortion.

[jpsartrean]

@Einsteinbomb Bork's philosophy was simple - where the Constitution is silent, it is improper for judges to assert their personal preferences/agenda as somehow superior over legislation passed by THE PEOPLE. Now - just when/where the Constitution is silent is a matter of debate. Some (myself included) tend to believe that many of the so-called "privacy rights" are protected, but the question is: from whence? I think the 9th Amendment (as noted by Justice Goldberg in Griswold) perhaps...

[Einsteinbomb]

@jpsartrean

Set precedent throughout the United States history has always been by the Due Process Clause Fourteenth Amendment. Roe v. Wade set one precedent on the issue of privacy and others have as well. Bork is a originalist like Scalia and Thomas. They never interpret law and always leave the law to the states. Due Process has enumerated rights that are the rights of the people extended to a further degree but vague. Robert Bork would of destroyed set precedent and done what Kennedy said.

[jpsartrean]

@Einsteinbomb Precedent is not the end all be all - look at Plessy v. Ferguson. Bork agreed that it was wrongly decided, and that Brown was rightly decided. If you watch the hearings, Bork also certainly agrees that the law at issue in Griswold was a bad/silly law. However, to reiterate, it is NOT the function of the Supreme Court to strike down laws simply because they are "bad" or the judge disagrees with them. Kennedy's attack was a gross mischaracterization of Bork's theories imho...

[jpsartrean]

Speaking of Scalia, he was confirmed unanimously in the Senate. Bork was given a solid majority rating of "well qualified" by the American Bar Association in its report to the Senate Judiciary Commitee (though a minority gave him a "not qualified"). To what degree States' Rights should be respected is of course a difficult (and perhaps the most important) issue facing the Supreme Court. Do we really think that if power were returned to the legislatures, that they would ban contraceptives??

[Einsteinbomb]

@jpsartrean

No shit it's not the function of the Court to strike down laws based on being bad. But, Bork would of certainly struck down many laws made during the Civil Rights Era. This is a person who supported Poll Taxes and Literacy Tests that's why his confirmation was defeated. But, Bork was defeated because of Kennedy and was replace by Kennedy not an extraordinary win, but Kennedy is not as Conservative as Bork.

[jpsartrean]

@Einsteinbomb Bork "supported" poll taxes only if they were non-discriminatory. As for literacy tests, I'm not entirely sure they would be such a terrible thing (and most people would call me ultra-liberal). Granted, the following may be an imperfect/unfair analogy, but.... Do we allow blind people to drive cars? Would prohibiting the illiterate - in THIS day and age - from voting, be all that different??

[Einsteinbomb]

@jpsartrean

Bork supported Poll Taxes in the South to discourage minorities, namely blacks from voting. As for literacy tests they were directly aimed at blacks and the their background with the lack of education. This is a man that believed that believed leaving contraceptives as a fundamental right only applied to the states. So, he was obviously against contraceptives. That is both unusual and disturbing. Bork would of destroyed more precedent that enabled minorities to equality of a white.

[jpsartrean]

@Einsteinbomb "believed leaving contraceptives as a fundamental right only applied to the states. So, he was obviously against contraceptives." This is the whole point many on this thread have been trying to make, but you keep missing. Just because a judge believes in the authority of a state to enact a law does NOT mean that that judge agrees with the law (or would vote for its enactment as a CITIZEN). Regarding literacy tests, I am CERTAIN Bork would have struck down literacy... (cont)

[jpsartrean]

(cont)... tests if they were only applied to a particular group or class on strict equal protection grounds. I would not vote to prohibit abortions, nor would I (typically) support politicians/legislators who would. But the more I study the law/Constitution, the less I see any CONSTITUTIONAL prohibition against the authority of a state to enact such a law.

[Einsteinbomb]

@jpsartrean

State have policing power with their citizens but to a point. The states don't have the power to go beyond their power to infringe on individual rights under set precedent by previous rulings. The enumerated rights under the U.S. Constitution is the protect our fundamental rights and was the precedent for privacy. And, as for your comment on Literacy Tests Judge Bork was quite fond of them and was known for his support of them. This was why his confirmation was rejected.

[Einsteinbomb]

@jpsartrean

Robert Bork was against contraceptives and his ideology on the matter was quite unusual. In Griswold v. Connecticut the U.S. Supreme Court ruled contraceptives as a private matter under the Due Process Clause(Unenumerated Rights) of the U.S. Constitution. He obviously did not and there is no doubt he would rule against it. The states shouldn't have and don't have the power to enact laws infringing on enumerated rights. Bork's judicial philosophy was simply wrong for mainstream.

[Oboist]

@Einsteinbomb

You are absolutely ILLITERATE, ebomb! "Would of"??? Where did you learn English? From Biden?

[Einsteinbomb]

@Oboist

What the fuck is your problem, friend? Maybe get an education in manners and learn to discuss matters civilly pertaining to politics.

[Einsteinbomb]

@jpsartrean

I believe Ted Kennedy said it best, "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,

school children could not be taught about evolution, writers and artists could be censored at the whim of government........." Bork was an right wind extremist and him on the court would of destroyed decades of civil rights precedents.

[jpsartrean]

@mattreedah While I think Bork was characterized and treated unfairly, I think he did a poor job explaining his judicial philosophy at his confirmation hearings. Had he been more emphatic that he was not criticizing the RULING in Griswold but rather the rationale (right to "privacy"), he might very well have been confirmed. Though characterized as an "arch conservative," Sen. Kennedy asked Bork at one point if he would uphold a state law compelling MANDATORY abortions - Bork never answered..

[amboyace]

The Constitution evolves via AMENDMENT. Otherwise we would still have slavery, and women without the right to vote. That would probably sit just fine with some of the posters here.

[BOOLsheet]

Alito, you got too in depth and judicial for the senator there. All he really wanted to know is, 'hey are you gonna disagree with the decisions that fit nicely with my political ideology'

[jjmcoates]

The Supreme Court struck down the Texas Sodomy law in 2002, even though it previously upheld it as constitutional. Precedent isnt absolute. The same people that say Roe Vs Wade is established law, say that the Texas Sodomy decision upheld less than 20 years ago was not.

[Brephos]

Your statement is wrong. The Texas statute at issue in Lawrence v TX (2003)

was never "previously upheld... as constitutional" as you claim. The case referred to in Lawrence is _Bowers v. Hardwick_, in which a Georgia statute was at issue. Not sure what your point is re: roe...

[DivergentEvolution]

The Supreme Court do overturn laws-- this is the exception and not the rule.

The court found in Lawrence v. Texas that the basis for Bowers v. Hardwick-- the historical arguments, interpretation of the Due Process Clause-- was incorrect.

You can't just point to a case, disagree with its results, and exclaim a need for its overturning. You need to additionally show that the legal basis for the ruling was incorrect.

[jpsartrean]

@DivergentEvolution One more point about Lawrence is that the State argument rested largely on the ground to prohibit such activity in that it was "immoral." A similar argument was offered at one point in the Griswold oral arguments, but was wholly dismissed. Lawrence does not (necessarily) establish that the right to engage in sodomy is a fundamental right, but rather that it cannot be prohibited merely on moral grounds. Had there been some legitimate rationale - say, public health concern...

[jpsartrean]

@DivergentEvolution (cont) then the law may have been upheld. Though no legitimate rationale appears existant/plausible, it seems safe to suggest that the ruling will be upheld. However, it is foolish to suggest that the state/govt. is powerless to regulate sexual activity, in particular where a compelling interest adheres....

[betomas]

Hace un mes? Que no baila Alito?

[calimar28]

Roe is illegal...its not constitutional. Now, if you want to make Roe part of the constitution, then change the constitution. Just pass it through congress, get 35 states to ratify it, and it becomes part of the constitution.

[jrsightes]

They did all that in 1868, when they passed the 14th amendment: "nor shall any State deprive any person of life, liberty, or property, without due process of law." Liberty means, among other things, freedom from government intrusions into our private lives (e.g., a woman's decision about whether or not to have a medical procedure).

[JohananRaatz]

Well I don't know about some of the other stuff by Bork was certainly right on Roe v. Wade.

[gozztopgo]

haha ... he called him "George Bork". Bork was a great nominee... and i don't think my saying that says i would agree with everything he believes in.

[susdlnskafw]

the dems were a joke during this nomination process

[prrolg]

dems are a joke 24/7

[etsneroj]

The Dems (many of whom I like) were embarassing during these (and the Roberts) hearings. They either misunderstoodd their job, or tried to redefine their job as "consent" only for judges they agree with.

[kreuzbergjohnny]

I don't think you understand their job. It is to insure a judge upholds the Constitution. As the Democrats consider Originalism an affront to the Constituion, they would consider an Originalist a bad appointee. So, the question of Roe (for example) comes down to the issue of privacy, which Originalists don't believe in. It's a litmus test for the methods of upholding the Constitution, not for supporting their own beliefs. The beliefs flow from the interpretation, not the other way around.

[etsneroj]

Actually, my job in Washington is to understand their job. And you are very naive if you think Senators of either party are standing on principle instead of result. Roe is THE litmus test for both parties--not "upholding the Constitution," which they know very little about. Consider the irony of arguing that originalism is an "affront to the constitution"--that the search for the origianl meaning of a document is an insult to the document. I'd love to hear a Senator back that argument up.

[robislost]

kreuz, that's not correct. It's not that Originalists don't believe in the right of privacy, they believe it doesn't extend to abortion, a right never recognized prior to Roe v. Wade.

[cskirk]

All I ask is to read the 14th amendment and Roe v. Wade together and please try to explain where the right of abortion comes from. I a lawyer and yet have disovered this right. Maybe I am not reading in depthly enough, but I do not see how the 14th amendment grants the right of abortion.

[PokaPokaPoka]

You are in fact correct. The right to abortion is not found anywhere in the jurisprudence for the past 200 years. It is a falsely conceived right by a activist judiciary.

[xcntry1988]

@cskirk It's not a right to abortion. It's a right to choose. Many cases following Roe explain this further (Maher v Roe, Harris v McCrae, Planned Parenthood v Casey).

[FAHayek89]

@xcntry1988 Actually, Casey is a great case of lack of judicial logic. O'Connor argued that Roes was a wrong decision based on flawed legal reasoning. She then preserves the "right" based on past precedent. Essentially, she argues, "we were wrong, but because the court preserves past precedent, being wrong for twenty years makes us right." Essentially, she committed an act of cowardice in which she both undermining the reasoning in Roe, yet still refused to overturn it.

[SuperFifthwheel]

@cskirk I dont see where the constitution grants the court the authority to make up new "rights". Nor lets the judcial system make up new laws, isnt that congress' job? I thought a courts job was to interpret the law, not play judicial activism. Wow, this country is in trouble.

[UdallIn72]

@SuperFifthwheel

Article III of the US Constitution clearly preserves the Common Law system, which is based on precedent and therefore naturally entails judicial lawmaking.

Article VI, moreover, establishes the Constitution as the Supreme Law of the United States. Logically, that entails that judges will on occasion have to decline to enforce "statutes" in conflict with the Constitution. The main job of a judge is to find out what the law IS.

[SuperFifthwheel]

@UdallIn72 Ya sure. If you want to believe judges should make laws go right ahead and believe that. I am glad I don't live in your fascist country. BTW, Article 3 Section 2 clearly defines judges duties, none of which entail making up new laws, but only defining them for particular cases.

[UdallIn72]

@SuperFifthwheel

Art. III s. 2 says that the judicial power extends to "all cases in law and equity..." A lawyer will recognize what that means: the terms operate to receive the English law, which, as I mentioned before, is defined principally by its reliance on the doctrine of precedent.

If precedent is binding (and it is), that means that judges make law.

This is not controversial.

Google "Common Law".

[FAHayek89]

You miss the point of originalism, or more accurately, textualism. If the text of the constitution is our source for Constitutional interpretation, then we cannot, by definition, impose our own beliefs. If we believe that the Constitution "evolves," then our own beliefs are our only guide in deciding how it should evolve. Thus, "living document" jurisprudence ultimately does put personal belief first.

[BareknuckleRealist]

Judge Bork was right each time, read' Slouching Towards Gomorrah', it's all there.

[prrolg]

Great book. He's truly a brilliant man.

[FartyFartyPoopyPants]

he rulz