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June 8, 2007

Robert Bork hasn’t mellowed with age
Posted by Avram Grumer at 11:25 PM * 16 comments

Former US Supreme Court nominee and Batman enemy King Tut lookalike Robert Bork showed up in two unrelated news items in today’s blog reading.

First (via Jim Henley) he’s helping out Scooter Libby by arguing that Patrick Fitzgerald’s appointment might not have been constitutional. As blogger emptywheel points out on the other end of that link, it’s thirty-four years after the Saturday Night Massacre, and Bork’s once again trying to fire a guy investing a Republican White House. (If history repeats itself, Bush’s impeachment proceedings should start next March.)

But the case I really wanted to blog about was this: Bork’s suing the Yale Society for a million dollars because he fell trying to mount a dais to speak at one of their events. This is funny (both weird and ha-ha) because Bork’s one of those anti-tort activists who thinks there should be limits on how much people can sue for.

Which is itself funny (just weird) because Bork’s also well-known as an originalist on Constitutional matters — he supposedly believes that the Supreme Court should interpret the Constitution as the Framers would have meant it to be read. But he’s willing to compromise that principle for the sake limiting non-incorporated people’s right to financial redress. Here’s Bork in 2002, writing in a Federalist Society journal:

Even if Congress would not, in 1789, have had the power to displace state tort law, the nature of the problem has changed so dramatically as to bring the problem within the scope of the power granted to Congress. Accordingly, proposals, such as placing limits or caps on punitive damages, or eliminating joint or strict liability, which may once have been clearly understood as beyond Congress’s power, may now be constitutionally appropriate.

So much for originalism!

I’m aware that Bork’s 80 years old, and that his injury is no laughing matter; I know how at that age just about anything can knock you into a death spiral. I wish he had a bit more sympathy for all the 80-year-olds who aren’t wealthy lawyers with lots of powerful friends, or the 30-year-olds without medical insurance who are one bad day away from bankruptcy. I figured this was the common hypocrisy of the wealthy and powerful, till I realized there might be a deeper method behind this, and I wondered if that guy suing the dry cleaners for $65 million was also an anti-tort activist.

See, by launching these big-money lawsuits, they generate their own anti-tort propaganda. And then, if they win, they get big bucks on top of it! Hypocritical like a fox! There have been a bunch of right-wing propagandists claiming that the ACLU does the same thing, which cements it, because the right always projects its own tactics onto its enemies.

Comments on Robert Bork hasn't mellowed with age:
#1 ::: cmk ::: (view all by) ::: June 09, 2007, 12:12 AM:

While I agree that the right (or possibly human nature) projects its own tactics onto its opponents, I think this is simpler: Damage to Robert Bork is just not the same as damage to "the 80-year-olds who aren’t wealthy lawyers with lots of powerful friends, or the 30-year-olds without medical insurance who are one bad day away from bankruptcy."

It's a lot more important.

[Dang. Not only first post, but I finally get to write something after biting my figurative tongue all day on the subject of Mormon underwear, and other aspects of that thread.]

#2 ::: Carl ::: (view all by) ::: June 09, 2007, 12:46 AM:

Irony can now be defined as "guys who made their bones arguing against large jury awards in small cases suing for a million dollars". That said, Victor Buono (King Tut) was a friend, and MUCH more interesting (and interesting looking) than Bork.

#3 ::: Bruce Cohen (SpeakerToManagers) ::: (view all by) ::: June 09, 2007, 03:02 AM:

The Google ads on the side of this page are mildly amusing: "Money Making
Are You Dreaming of Earning? Let Us Show You The Way. " is the first one.

Say, maybe Bork should start giving seminars on how to file civil suits for vast damages. Even better than real estate.

#4 ::: P J Evans ::: (view all by) ::: June 09, 2007, 09:06 AM:

the right always projects its own tactics onto its enemies

I was just reading an AP story about the GOP congresspeople from California, in which Doolittle is complaining that he's the victim of the Democrats' 'manufactured culture of corruption'. (There are two other GOP congresspeople who are also under serious investigation for less-than-legal activity.)

#5 ::: P J Evans ::: (view all by) ::: June 09, 2007, 09:08 AM:

In case that wasn't quite clear, Doolitlle means that the whole 'culture of corruption' thing is invented by the Democrats in order to get even with the Republicans. (And Abramoff and his buddies are just 'misunderstood', I guess.)

#6 ::: Lizzy L ::: (view all by) ::: June 09, 2007, 10:23 AM:

Avram, that's really twisted, and if I were in a slightly more twisted mood I would entirely believe it. What cmk said is also very plausible. It's also well known that application of principle (big lawsuits bad, tort law in need of reform, etc.) tends to falter when you are the special case in question.

#8 ::: Steve Buchheit ::: (view all by) ::: June 09, 2007, 10:36 PM:

#5 P J Evans.

For the pure, everything is righteous and blessed, or some such nonsense.

#9 ::: P J Evans ::: (view all by) ::: June 09, 2007, 11:24 PM:

Steve @ 8

I was under the impression that it's OK if you're a Republican. Or so he's seeming to say.

#10 ::: Marilee ::: (view all by) ::: June 10, 2007, 02:51 AM:

Avram, do you invest Republicans in mutual funds or REITs?

#11 ::: Stefan Jones ::: (view all by) ::: June 10, 2007, 03:21 AM:

#10: Standard savings accounts. They're losing ground and are of little interest.

#12 ::: Steven desJardins ::: (view all by) ::: June 11, 2007, 07:16 PM:

Meanwhile, a New York appeals court has ruled that a cop driving on a sidewalk and the wrong way down a one-way street, steering with one hand, and holding a gun in the same hand, with his finger on the trigger, is not "a gross deviation from the standard of care that a reasonable person would observe in the situation".

Remind me again of why we need tort reform, but not police misconduct reform, and why stories about witless lawsuits get more press than witless police shootings?

#13 ::: Patrick Nielsen Hayden ::: (view all by) ::: June 12, 2007, 08:48 AM:

"Remind me again of why we need tort reform, but not police misconduct reform, and why stories about witless lawsuits get more press than witless police shootings?"

Because one of the basic rules of American culture is that self-described tough guys (a category that now includes police, although it didn't always) start out 100 points ahead.

#14 ::: P J Evans ::: (view all by) ::: June 18, 2007, 03:01 PM:

I understand the dry-cleaning lawsuit in Washington is about over. The plaintiff has reduced his demand to $54 million (including $15,000 for rental cars so he could drive to various other dry-cleaning businesses). And it's pretty clear that everyone else considers the sign as something not to be taken that literally.

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#16 ::: Naomi Parkhurst sees spam ::: (view all by) ::: April 09, 2015, 06:38 PM:

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