Role of religious right-wingers

In Part One, we looked at the current state of the Supreme Court and the fact that the next president will likely determine the future of the court for the next few decades. In particular we looked at the fact that the next two or three vacancies on the court are likely to come from the liberal side, which means that the court could undergo a dramatic shift to the right if one or two liberal justices are replaced with conservative justices, putting key precedents in many areas at risk. But will John McCain appoint such nominees as president? Let’s look at his record on judicial nominees.

A few weeks ago, McCain gave a series of speeches on his views on judicial matters. In a speech at Wake Forest University, he used all of the standard conservative buzzwords and catch phrases, like “judicial activism” and “strict constructionist.” He promised to appoint justices in the mold of the two most recent appointees to the court, John Roberts and Samuel Alito, both of whom are firmly in the conservative camp on the court. The truth is that, despite his reputation as a moderate who isn’t afraid to stand up to the religious right, McCain has voted for even the most extreme right-wing nominees for the court, including Robert Bork, the Reagan nominee who was rejected by the Senate.

McCain’s support of Bork, easily the most extremist nominee to the court in modern times, may bear a closer look. Bork’s long track record of legal scholarship included a great many positions that were startlingly anachronistic. For example, in an article in the Indiana Law Journal, Bork had argued that the First Amendment applies only to political speech, not to any other form of speech:

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“Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other form of expression, be it scientific, literary, or that variety of expression we call obscene or pornographic.”

As far as I can tell, Bork is utterly alone in taking this position. It is consistent, however, with his zeal for censorship in virtually all areas. Bork has called openly for government censorship of a wide range of ideas, arguing for the prohibition of virtually anything that offends the sensibilities of a majority of the public. “No activity that society thinks immoral is victimless,” Bork declared. “Knowledge that an activity is taking place is a harm to those who find it profoundly immoral.” Despite these obvious authoritarian tendencies, McCain spoke on the floor of the Senate in defense of Bork’s nomination in 1987, saying that he was voting for Bork “without any hesitation”:

I believe that what the Senate should appropriately examine in a nominee are: Integrity and character, legal competence, and philosophy and judicial temperament. I believe Robert Bork is well qualified in all four respects