Robert Bork Dies and Rachel Maddow Smears Him With Ancient Slander

December 24th, 2012 5:02 PM

It's not enough that liberals sought to destroy a good man's reputation when he was nominated to the Supreme Court. Their efforts at character assassination continue after his passing.

One of the most contemptible examples of this came from Rachel Maddow on her MSNBC show Dec. 19 in talking about the death of Robert Bork and his influence on American jurisprudence and politics over the last four decades. (video clip after page break)

As to be expected, Maddow focused on Bork's thwarted nomination to the Supreme Court in the fall of 1987, the opening salvo in our decades-long culture war.

"There are certain things that happen in American politics and in American law that even though they happened relatively recently, even though they happened within the last generation, you still kind of can't believe they really happened at all," Maddow said, then showing NBC News footage from Bork's confirmation hearing.

"It was the kind of day," intoned NBC reporter Carl Stern in the report, "that even Bork described as difficult. He had to defend an opinion he wrote involving women workers at a West Virginia chemical plant in which he upheld a policy regarding the women, whose future unborn children might be harmed by the chemicals, to be sterilized or quit. Five women underwent sterilization to keep their jobs."

The NBC report then showed Democrat Sen. Howard Metzenbaum questioning Bork about the decision. "Judge, I must tell you that it's such a shocking decision and I can't understand how you as a jurist could put women to the choice of work or be sterilized," Metzenbaum inveighed.

Bork -- "Some chose sterilization, some did not. The fact is, if they had not offered that choice, these women would have been put in lower-paying jobs or would have been discharged. They offered a choice to the women. Some of them, I guess, didn't want to have children."

Metzenbaum -- "I cannot tell you strongly enough that the women of this country are terribly, terribly apprehensive about your appointment. Yesterday you said women and blacks who know your record on the court need not fear you. But the fact is, Judge Bork, they do fear you. They're concerned, they're frightened. And it's only fair to say that you've made it quite clear in your appearance before this panel that you're not a frightening man, but you are a man with frightening views."

Bork -- "I have never said anything or decided anything that should be frightening to women. You're undoubtedly correct, senator, that there are women who are apprehensive. I think it can only be because they don't know my record."

NBC reporter Carl Stern -- "Later in the afternoon, one of the West Virginia women who was 26 when she was sterilized, sent a telegram to the senators, calling it the most awful thing that ever happened to her."

Maddow -- "That really happened, here, a federal judge upholding a corporation's right to fire employees if they do not submit to being sterilized. That happened and not all that long ago."

Who better to refute this nonsense than Bork himself, in his concise and lucid 1990 book, "The Tempting of America: The Political Seduction of the Law." In this excerpt, Bork elaborates on the legal decision condemned by Metzenbaum and Maddow --

The American Cyanamid decision was grossly distorted during the campaign and the hearings. The facts were quite otherwise than People for the American Way and Metzenbaum indicated. The charge was that the company was pumping lead into the air of the workplace so that the fetuses of pregnant female employees were endangered and that I had permitted the company to achieve a safe workplace by telling the women they must be sterilized or fired. The charge was false in every particular. The statement that I had put women to this unhappy choice was wrong. The women who underwent voluntary sterilization did so four years before I became a judge. The only issue before me and the other two judges on the panel was whether a relatively small fine should be assessed against the company long after the fact. The company was not pumping lead into the workplace, a statement by PAW that implies willingness on the part of the employer. The unavoidable consequence of one stage of the manufacturing process was to produce lead in the air. Nor, as PAW asserted, did the company have the alternative of "cleaning up the air." The factual finding of the administrative law judge, which we were bound to accept because it was not challenged on appeal, was that no technology existed which would allow the company to remove enough lead from the air to make that department safe for pregnant women.

The company was therefore faced with an unsafe condition of the workplace, as that is defined by the Occupational Safety and Health Act. Not being able to remove the lead, it had to remove women of childbearing age. There being only a few other openings in the plant, some of the women would have been transferred to lower-paying jobs and some would have been discharged. If the company had simply transferred or discharged the women, there would have been no violation of the law. But some of the women apparently wanted to keep these jobs, and the company informed them that sterilization was an option. Five of them chose that option.

There is, I am sure, a moral question whether the company should have made that choice known to the women. Perhaps it should have said that some were transferred, some were fired, and that it would not retain a woman even if she were sterilized. How far, as a matter of morality, the company was obligated to make the moral decision for the women, a decision that would have run against the wishes of some of them, or how far the company was obliged to treat the women as free adults capable of making their own choices is one of those questions about which people may differ.

Fortunately, no such knotty question of morality was put before the appeals panel. The only question before us was a legal one: whether offering the women the information to enable them to make a choice constituted an "unsafe condition of the workplace" as defined by the Occupational Safety and Health Act. Unanimously, we thought it absolutely clear that the offer of a choice was not an unsafe working condition. Given the statutory language and the legislative history, there could be no doubt on that score. The administrative law judge who first heard the case stated, "There's a law that covers this, and it's not the Occupational Safety and Health Act." He found it "clear that Congress conceived of occupational hazards in terms of processes and materials which cause injury or disease by operating directly upon employees as they engage in work or work-related activities." He was affirmed by the Occupational Safety and Health Review Commission, whose decision we reviewed and affirmed. The Secretary of Labor had the right to appeal from the Commission and chose not to do so. The union did appeal but after our decision did not seek en blanc review by the full Court of Appeals and did not petition the Supreme Court for review. It was a perfectly cut-and-dried case and no one who troubled to learn the facts and the law could have thought otherwise. Under the statute, a policy of offering women a choice was not a "hazardous condition of the workplace." The judges who joined me in that decision were Justice, then Judge, Scalia and Senior District Judge Williams. When Judge Scalia was up for confirmation to the Supreme Court, no member of the Senate Judiciary Committee asked him even one question about his vote in American Cyanamid. Howard Metzenbaum's moral outrage was nowhere in evidence.

"That happened and not all that long ago," Maddow said, refering to "a federal judge's decision" -- Bork's -- in the American Cynanamid case when in fact it was the unanimous decision of Bork and two other judges on an appeals panel.

Their decision came in 1980, one year after OSHA fined the company $10,000. If the 32 years that have passed since are "not all that long ago," as Maddow claims, surely the year 1969 was hardly distant from the panel's decision.

For it was in 1969 that a United States senator, one who would later lead the charge against Bork's nomination, drove off a bridge with a woman in his car after leaving a party and fled the scene while she drowned. Not only that, this senator neglected to report the accident for 10 hours, lied about it in a police report, lied again in a nationally televised speech, and perjured himself at an inquest six months later.

For all of that, Edward Kennedy was rapped on the knuckles by a compliant judge instead of serving a mandatory jail term as required by the circumstances of the case. And over the next four decades, Kennedy was repeatedly re-elected thanks to the willingness of Massachusetts liberals like Maddow to turn a blind eye to actual criminality while making thought criminals out of people like Robert Bork.

All of that actually happened, impossible as it is to believe.

Rest in peace, Judge Bork, secure in the knowledge that your harshest critics remain unable to hide their actual selves.