Is Judge Robert Bork a flip-flopper, like the fellow he just endorsed? It seems Bork has forgotten his own thinking on judicial tyranny in endorsing Mitt Romney! If there ever was a great and appropriate opportunity for a principled Executive to stand up to judicial activism, the 2003 "homosexual marriage" ruling in Massachusetts was it. But Romney was missing in action. Silent. Hoping no one would notice. (Though as we've pointed out, pundits including Hugh Hewitt, Phyllis Schlafly, and Pat Buchanan noticed at the time ... along with Professor Hadley Arkes. But they -- along with the conservative "intelligentsia" -- seem to have "forgotten" they ever thought these thoughts.)
Here's Romney's web site on Bork's unfathomable endorsement:
"I greatly admired his leadership in Massachusetts in the way that he responded to the activist court's ruling legalizing same-sex 'marriage.' His leadership on the issue has served as a model to the nation on how to respect all of our citizens while respecting the rule of law at the same time."
How old is Bork now? What is the average mandatory retirement age around the country for judges? How could this be the same man who wrote Slouching towards Gomorrah?)
Here's Judge Bork ruminating on judicial tyranny back in November 1996 (the good old days) in First Things magazine. (Thanks to BizzyBlog for digging this up.) --
Only a change in our institutional arrangements can halt the transformation of our society and culture by judges. Decisions of courts might be made subject to modification or reversal by majority vote of the Senate and the House of Representatives. Alternatively, courts might be deprived of the power of constitutional review. Either of those solutions would require a constitutional amendment. Perhaps an elected official will one day simply refuse to comply with a Supreme Court decision.
That suggestion will be regarded as shocking, but it should not be. To the objection that a rejection of a court's authority would be civil disobedience, the answer is that a court that issues orders without authority engages in an equally dangerous form of civil disobedience. The Taney Court that decided Dred Scott might well have decided, if the issue had been presented to it, that the South had a constitutional right to secede. Would Lincoln have been wrong to defy the Court's order and continue the Civil War? Some members of the Supreme Court were edging towards judging the constitutionality of the war in Vietnam. Surely, we do not want the Court to control every major decision and leave only the minutiae for democratic government.
