If you think Merrick Garland is a left wing Robert Bork, you know nothing about Robert Bork

There is some subterranean talk that what the Republicans are doing in refusing to allow a vote on the President’s nomination of Supreme Court nominee Merrick Garland is somehow equivalent to what the Democrats did to right-wing icon Robert Bork. Of course, expecting a rational discussion with Republican leaders these days is a fool’s errand. And it is also observable that Republicans are adepts at using the puerile “you’re-just-as-bad” argument to set up false equivalencies. (This tactic is facilitated by the Washington press which equates objectivity with false equivalencies. In other words, the national political media has decided to give up all pretense of actually reporting.)

That said, the argument is ridiculous from any number of viewpoints, not the least of which is that the Democrats actually allowed a vote on Bork’s nomination. This is an important consideration, because the real reason Senate Majority leader Mitch McConnell will not allow a floor vote is that it would expose Republican senators (key to his hold on power and the GOP’s hold on the senate) to defeat in Democratic-leaning states. In fact, the decision might have put in jeopardy the Republican head of the Judiciary Committee, Chuck Grassley, because his refusal to hold a hearing on the nominee (announced even before he knew who the nominee was) brought out a Democratic challenger, whom some think is a credible threat to him. But them’s the breaks when your parliamentary leader thinks he’s Margaret Thatcher.

But more fundamentally, the difference resides in the fact that Garland is a moderate. He is exactly the kind of judge that Eisenhower, Nixon or Ford would have appointed (with the exception of the period when Nixon was vindictively appointing the racist right winger Clement Haynsworth, whom even part of the GOP opposed, and the highly reversed racist and mediocrity G. Harrold Carswell). And he is one who would have be lauded by most of the then-GOP (i.e., antediluvian RINOs by today’s standards).

Bork on the other hand was a judicial reactionary, who had little belief in precedent and was guided by solely by what was then considered extreme right wing beliefs. (In these days it is hard to tell what is an “extreme” right wing belief. They get more “extreme” by the day.)

I bring this up only because I recently found a short clip of Bork hosted by none other than the Nixon Presidential Library and Museum in their Watergate exhibition. You may recall that Robert Bork was solicitor general in the fall-of-the-Roman-empire days of the Nixon administration. A special prosecutor, Archibald Cox, had been appointed to investigate the crimes that, it was apparent, were becoming every day more extensive and the clue were leading closer and closer to the White House’s Oval Office. The agreement the President signed (under intense public pressure) with respect to the appointment was the Cox would have complete independence and could not be removed except for legal cause (namely prosecutorial misconduct). Cox followed the leads and the leads led to the White House taping system. Cox subpoenaed the tapes. Nixon ordered him to withdraw the subpoenas. Cox refused. Nixon ordered Attorney General Elliot Richardson to fire Cox. Richardson resigned rather than obey the order. The second in command at the Justice Department, William Ruckelshaus, did likewise That left the solicitor general, Robert Bork. Did he follow the acts of conscience of his two superiors? We are talking about an ideologue here. So who would he follow, his conscience or the order of a fellow (embattled) ideologue?

Any way take (literally) one minute to watch Bork’s explanation:

Here is what he says: There was no legal basis for dismissing Cox. But he was being insubordinate. (But since the office was officially “independent” of the President, he was not “subordinate” to the president.) And that insubordination was causing the President’s “moral” image to be tarnished while he was dealing with issues in the Middle East. So Cox “had to be fired.”

Could there be any statement that more clearly announces that the President is not governed by the rule of law? A president will always have reason not to want to have his close associates indicted or himself the subject of an impeachment hearing. But if that is sufficient to prevent all attempts to investigate or prove his guilt, then clearly the president is above the law. In fact, he is clothed with immunity that has not been seen since the days of the ancien régime.

Archibald Cox himself used a particular historical analogy to illustrate. He recalled the time when new Stuart King James I (just come down from Scotland where he was James VI) insisted that the “king can do no wrong.” That is, by definition, the king is outside human law. Lord Coke replied, “The king ought not be under any man, but under God and the Law.” It is the failure to understand that very essential point, which had been established in English law even before the American Revolution and the U.S. Constitution that we hear so much reverence for. When you watch Bork, you understand that he simply does not get it. (Plus his utter certainty, repetition and reliance on simple fiat is staggering coming from a law professor.)

There is no doubt that Bork should have been rejected. His treatment has nothing to do with Garland’s.

Having brought this matter up, you should probably listen to Cox himself tell the story of Lord Coke. (It’s within the first two minutes of the C-SPAN interview linked below.) If you click on the link, you will also hear what it once was like to have a progressive legal authority make the case for rational development of the law, respecting precedents where possible but to model law, including constitutional law, to address modern needs. It’s hard to believe that his kind of respectful, patient and rational voice has been gone only 12 years. It seems like a different era than one we now inhabit. One closer to the ancien régime.

CSPAN interview of Archibald Cox, June 25, 1987.

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