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Saturday, February 04, 2006 

Bork on Breyer

I'm busy getting ready to leave, but I'm willing to take a few minutes out of my busy hair-drying, tie-tying time to point you to this book review. Former appeals court judge, Supreme Court nominee, and legal icon Robert Bork has reviewed Justice Stephen Breyer's book Active Liberty. I haven't read it yet, but I plan on doing so one lazy afternoon. The review is full of Borkisms. For instance...
The justices must think that they have established an easement across the Constitution just as trespassers acquire a right-of-way across land by years of unremedied intrusions.
That's a law joke.

Bork takes Breyer to task on the issues of religion and the Establishment Clause, focusing on free exercise and school choice programs. He also takes issue with Breyer's views in the Grutter v Bollinger affirmative action case. Bork states...
The theory, unexamined by the Court, was that "diversity"” in experience would enrich everyone'’s education. (Needless to say, this enriching diversity did not apply to Caucasians with diverse backgrounds, such as the daughter of a West Virginia coal miner.)
I've always found that aspect of affirmative action programs interesting. They often treat the daughter of a West Virginia coal miner the same as the daughter of a Manhattan investment banker... as long as they're both white. Apparently, diversity is only skin deep, and the only kind of diversity that really helps is the kind you can photograph and put on your recruitment materials.

Bork then takes aim at free speech, specifically campaign finance reform...
The classic case is that of Eugene McCarthy who, dependent upon a few very large donors, could not have mounted his primary campaign against Lyndon Johnson under present laws. Nor does Breyer's rationale fully account for the Court's upholding of bans on political issue advertising by corporations and unions within thirty days of a primary election or sixty days of a general election. That is a prior restraint on political speech hitherto regarded as absolutely forbidden by the First Amendment.
I think that there is a certain naivete associated with anyone who thinks that McCain-Feingold will do anything to take the money out of politics and clean up elections. Trying to get money out of politics is like trying to get wet out of water.

Bork isn't impressed by Breyer's book or his jurisprudence. It's a shame that these two can't battle it out rhetorically in Supreme Court opinions.

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  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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