December 17, 2007

Objectively Unfit Mitt Romney’s Bork Endorsement: A Very Painful Critique

Filed under: Life-Based News,Taxes & Government — Tom @ 9:06 pm

On Friday, my post, “Romney, the Courts, and the Constitutions: The Dam May Be Breaking,” noted that Fred Thompson’s campaign was the first to criticize Mitt Romney over subsidized abortion services in RomneyCare, and also unilaterally imposing same-sex marriage in Massachusetts when he was constitutionally compelled not to. At that point, Team Romney had “responded” with bogus “we had to follow the law” excuses from its spokesmouths.

I concluded:

Now that it’s joined the fray, Team Thompson needs to extend its arguments to constitutional law.

Kevin Madden and M. Fehrnstrom have thrown you two hanging curves, folks. Knock ‘em out of the park already.

Now playing center field for Team Romney: Bobby Bork (NewsMax story).

Wow. It’s amazing how, thanks to Iowa Congressman Steve King’s endorsement of Fred Thompson and a number of other items, this doesn’t seem anywhere near as important as it did a couple of days ago when it occurred. But given Bork’s status as a legal heavyweight, it must be dealt with. After all, Team Romney’s purpose in securing the endorsement is to inoculate the candidate against criticism that he ran roughshod over Massachusetts’s constitution while he was governor — not with substantive responses, mind you, but a vindication-by-association claim that, “Well, if Bob Bork says it, Romney must have done all he could in the circumstances.”

Make no mistake: Robert Bork’s endorsement of Mitt Romney is a bitter and painful disappointment that I would rather not have to criticize. But I must, because that endorsement reflects bad, er, judgment on Bork’s part arising from inadequate research, or (hard as this is to type) legal error.

(Side questions: Who thinks Mitt Romney had it written down somewhere in his master plan to “get Robert Bork endorsement and announce it on a Saturday”? I didn’t think so. Now who thinks that it’s a semi-panicked, finger-in-the-dike response to the supposedly irrelevant [if you believe Hugh Hewitt Hackitt] Thompson campaign punching a couple of big leaks in the dam, and likely preparing to drive constitutional arguments through the holes? I do.)

I wish I could believe that the Bork endorsement is “merely” a case of bad judgment. First, maybe it has happened, but I don’t recall a former appeals court judge ever endorsing a candidate. I would not go so far as to call it unethical, because Bork has not been a Justice for probably 15 years, if not more. But it’s still unwise. Second, the endorsement itself may be a political “Who has the best chance?” calculation. If so, it seems quite premature and based on little more than gut instinct.

Unfortunately, though, the Bork endorsement is likely more (i.e., worse) than that, as evidenced by the bolded lead-in and the final two sentences of the first paragraph from the Romney announcement:

Joining Romney for President, Judge Bork said, “Throughout my career, I have had the honor of serving under several Presidents and am proud to make today’s endorsement. No other candidate will do more to advance the conservative judicial movement than Governor Mitt Romney. He knows firsthand how the judicial branch can profoundly affect the future course of a state and a nation. 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.”

It is my sad duty to inform former Justice Bork that if the rule of law and federal/state constitutions are to mean anything, the bolded text doesn’t make any sense. What’s more, it directly conflicts with some of what Bork has written in the past.

As to the constitutional issues, let’s go through this again, with appropriate revisions reflecting the misguided Bork endorsement.


Nothing has changed in the past 72 hours.

Under Massachusetts’s Constitution, court rulings (or opinions) are not ‘obeyed’ by the legislature or the governor (or the entire executive branch), because judges cannot order the two elected branches around. They are ‘orders’ when issued to private individuals or corporations — IF the court has jurisdiction.

This is still not arguable.

In fact, under the Massachusetts Constitution, the Supreme Judicial Court (SJC) didn’t even have the jurisdiction to take the case, and violated THEIR oaths of office by doing so, as the December 2006 Joint Letter to Governor Mitt Romney from Pro-Family Leaders” pointed out (link is to a former PDF converted to HTML, with text but not all formatting intact, at BizzyBlog’s host):

As is increasingly well known, the Massachusetts Constitution denies the Judicial Branch any role in marriage policy:

“All causes of marriage shall be heard and determined by the governor and council, until the legislature shall, by law, make other provision.” (PART THE SECOND, Ch. III, Article V.)

In hearing the Goodridge case and issuing an opinion, four of the seven judges violated the Supreme Law of Massachusetts.

Again, this is, and remains, not arguable.

Even the SJC, in its Goodridge ruling, acknowledged that it could only advise the state legislature to pass an enabling law within 180 days of its ruling.

The legislature didn’t pass a law, and has not done so to this day.

Enter Mitt “he promised to obey the court’s ruling” Romney.

Even though there was no “ruling” to obey, only a court opinion that the legislature had not enabled into law, Mitt Romney extra-constitutionally, and in direct violation of his oath of office, imposed same-sex marriage in the Bay State.

Whether or not Bob Bork has endorsed Romney, this is still not arguable.

Yet Romney has now been endorsed for president by some of the alleged leading lights of conservatism, even of social conservatism, and now even by Robert Bork.

This is madness. It must be stopped.

I understand that Romney gave a speech recently about his (insert name of his religion) faith.

Understand this. I don’t care that Mitt Romney is a (insert name of religion).

I don’t care about what Romney has said, in isolation. I do care about what Romney has done, in comparison to what he has said. What he has consciously, proactively, and cynically done to break the oath he swore to the people of Massachusetts, and before God, while pretending now to be a warrior against the very thing he put into place, makes him objectively unfit to serve as president.

Our country’s Founders would agree.

And that, folks, is also not arguable.

And Robert Bork’s endorsement of Mitt Romney doesn’t change that. Not. One. Bit.


Bork’s endorsement, and his assertion about Objectively Unfit Mitt Romney’s “leadership” in responding to the Goodridge same-sex marriage ruling, conflict with what he has said about the ruling itself, and about the relationship between the three branches of government in general.

In November 2003, in the wake of the Goodridge ruling, Bork reacted, in a way that gets into the neighborhood of the essence of the situation, but unfortunately without entering the gates:

“Such matters may be debated, and a legislature would have debated them. But the judges sitting in Boston do not want the Massachusetts legislature to entertain the debate. Nor will the elected representatives be permitted to judge whether homosexual marriage further demeans the institution of marriage, an institution that has already been lowered, via such innovations as no-fault divorce, to a temporary relationship based on little other than personal convenience and sex. Once that is fully accepted, it is difficult to see why polygamy or polyandry or group marriages should be excluded by law or morals.”

Note that he didn’t say that the judges ended the debate. Somewhere in the cobwebs, Bork must have recognized that the judges couldn’t end the debate, even if they had wanted to. The SJC majority could only suggest that the Legislature come up with a law enabling same-sex marriage in a totally non-enforceable “deadline” of 180 days.

The larger point is that Bork must understand, contrary to the language of the Romney endorsement, that “the way he (Romney) responded” to the ruling was obviously inappropriate. If all the SJC could do is try to get the Legislature to do what it “wanted,” then Bork surely must know that the SJC does not have blanket coercive power over the executive branch.

What’s more, Bork has entertained the notion of executives disobeying court orders in the past, as this passage from First Things in November 1996 makes crystal clear:

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.

It is not arguable that the SJC, in its Goodridge ruling, engaged in the very “civil disobedience” that Bork claims to abhor. Bork should realize that is there ever was a time when an executive should have rejected a court’s pretend illegitimate “authority,” this was it.

Mitt Romney could have merely said, “I don’t have a law to implement. What’s more, the Court did not have jurisdiction in this case in the first place. There’s nothing I can, or will, do, because, in the absence of legislation, anything I do to advance the court’s ruling will violate my duty to uphold the state’s constitution.”

How difficult would that have been for Romney to say? How difficult would that have been for the average constituent, even having to go through the Old Media filter, to understand? As is so often the case, the right thing to do would have been the easiest thing to do. That Bob Bork either doesn’t recognize this, or chooses not to recognize it, is truly tragic.


Team Thompson still has those two hanging curveballs, big as watermelons, heading towards home plate. Team Romney’s center fielder can’t catch 500-foot shots. Knock ‘em out of the park already, guys.


UPDATE: Here is part of an e-mailer’s reax to the Bork endorsement –

….. Mitt keep(s) answering valid questions/criticism with endorsements.

Notice that when issues of substance arise, he never fights his own battles…rather, millionaire Mitt simply runs out, procures an endorsement then let’s that endorsement and the hacks ….. do his bidding…

Gee, what a “comforting” vision of a POTUS. “Please wait Mr. World leader, I can get 10 people to tell you that I’m not what you think I am…waaaaahhhh!”

….. So let’s ask the hacks if the USSC rules that all first-born male children of each household be terminated, if Mitt – who will have “no choice” but to adhere b/c in his estimation it’s “court-imposed,” will be off the hook as far as culpability?

Question ….. what does a decent mind and integrity go for these days?



  1. Incredible, Tom. This was the most succinct, cohesive post on this matter to date. And thank you for walking us back to the subject-matter jurisdiction root…it’s important for folks to get that the MA constitution assigns “job descriptions” (or the types of cases) with which each branch will handle.

    Fair [e-mailer] question to Romney/Bork. If they are consistent, they would have to say that Romney would have no choice but to comply. That is a good comparison that I hope people will take to the Romniacs of talk radio.

    Again, simply outstanding. Thanks.

    Comment by Rose — December 17, 2007 @ 10:08 pm

  2. #1, thanks so much. The subject-matter thing deserves more visibility, as it nukes the case before it even gets heard.

    Comment by TBlumer — December 17, 2007 @ 10:27 pm

  3. Wow, Tom. The tough topics really bring out the best in your game. As a former editor, I have to tell you, you are a FIRST-rate analyst and writer. All around us standards in journalism are falling — verbal skillls, analytical competence, integrity and courage — while you (an accountant!) are raising the bar. Jumping metaphors to another sport, whoever the competition is, you’ve just lapped them a couple times. Great analysis of the essentials, and great presentation of them for your readers!

    Comment by John Haskins — December 18, 2007 @ 12:41 am

  4. #3, thanks for the nice words. Would like to think the Thompson people will take it to the next level and not get intimidated by Bork’s endorsement.

    Comment by TBlumer — December 18, 2007 @ 12:48 am

  5. FRED THOMPSON is the best person to lead this country. He is a true conservative and has been his entire life. All one has to do is check his record to see this.

    During my time in the Army as am Intelligence Analyst, I served under both Presidents Carter and Reagan (as my commanders in chief). Without argument, President Reagan was the best commander-in-chief a military person could ever have served under. Fred Thompson possesses the same qualities and vision as President Reagan in that he is strong on national defense and sees a dire need to secure our borders and control immigration.

    I can think of no better person to lead this country and fix the problems we have. He is the only candidate from either party who has specific and detailed plans on border security and immigration reform; revitalization of America’s armed forces; saving and protecting Social Security; and tax relief and economic growth. These are detailed on his Web site at I challenge you to find any other candidate who has laid out specific plans to fix anything.

    Fred Thompson has published his first principles, some of which are mentioned above. In addition to those, he strongly believes in individual liberty, personal responsibility, limited government, federalism, traditional American values, the rule of law and is a strong proponent of the Second Amendment — all concepts established during the birth of our country and documented in our Constitution.

    Again, try to find any candidate who has laid out their plans to “fix” this country. You will find they all speak in vague and abstract terms on their plans.

    For those who have heard Fred Thompson speak, you will usually hear him say that the Fred Thompson you see today is the same Fred Thompson you saw yesterday and is the same Fred Thompson you will see tomorrow. He stands by his principles and values and doesn’t shift his positions based on polls or public opinion; in other words, he doesn’t say what the voters want to hear just to get elected, but remains steadfast on his views and convictions.

    During his time in the Senate he focused on three areas: to lower taxes, strengthen national security and expose waste in the federal government. Fred Thompson has foreign policy experience, having served as member of the Senate Foreign Relations and Senate Intelligence committees.

    As chairman of the Senate Governmental Affairs Committee, he opened the investigation in 1997 on the Chinese government’s attempt to influence American policies and elections, and this investigation identified connections with the Clinton administration (documented in the committee’s report).

    As a member of the Finance Committee, he worked tirelessly to enact three major tax-cut bills. Fred Thompson remains steadfast and even though a person may not agree with all his views and he understands some may disagree with him, you can count on him to be consistent and unwavering.
    Don’t be fooled by his laid back approach and what critics call his “laziness.” As a former assistant U.S. attorney, he earned a reputation as a tough prosecutor and he possesses the toughness this country needs in order to tackle today’s and tomorrow’s issues.

    I ask that you take a hard look at what this country needs, then take a hard look at all the other candidates’ views, policies, their records and their track record on consistency. Fred Thompson possesses integrity, loyalty, commitment, energy and decisiveness, all traits of an effective leader, and will emerge as the best person to take this country boldly forward.

    Comment by Frederick Paxson, PhD — December 18, 2007 @ 1:03 am

  6. 1. So you think that Mitt Romney wanted same-sex marriage in Mass. ? I cannot believe this given his personal beliefs ..

    2. and you think that a Harvard Law education along with all the advise he had gives him less knowledge about the law involved than you have .. ?

    Comment by Carl Loeber — December 18, 2007 @ 9:04 am

  7. #6, Two responses:

    A. Digest this, where Romney is shown to have made a promise not to do his constitutional duty:

    Read the first three paras. Grasp their full impact, esp this promise made BEFORE the election:

    ….he said he believed that marriage should be limited to the union of a man and a woman. But, according to several people present, he promised to obey the courts’ ultimate ruling and not champion a fight on either side of the issue.

    Further thoughts:

    The NY Times’s Accidental Journalism Reveals the Full Scope of Mitt Romney’s Same-Sex Marriage Deception, and His Unfitness to Be President

    B. Tell me specifically where I am incorrect. Argument by supposed credentials doesn’t fly around here, and Romney’s attempts to win arguments with credentials doesn’t seem to be working anywhere else either (thank goodness). Ask Congressman Steve King.

    Comment by TBlumer — December 18, 2007 @ 9:23 am

  8. Tom;

    The single biggest factor driving this primary campaign is FEAR; for example it’s either fear of Hillary, fear of al-Qaeda, or fear of a recession. Fear is literally dripping from every major opinion piece in America today, and I would be willing to bet that Bork’s decision is based upon “fear” that the SCOTUS falls yet into another 20 year cycle of leftist orientation and judicial legislation. There is little doubt in my mind that assurances were made to him by Romney that he would not appoint any left leaning judges for his endorsement. And there is no doubt that Rudy made the same commitment to Pat Roberson. The big question is will Rudy and Romney if elected keep their word? If one considers their past actions as a predictor of the future, then I would say no they won’t.

    I make it clear on my weblog that I am a Ron Paul supporter, but I have yet to read any analysis of Ron Paul’s policies from any of his detractors. All I read is that he is a nut, stupid, or a moron that is going to leave us vulnerable to terrorist or Chinese domination. Again it’s the fear factor. However I came to my conclusion about Ron Paul through studying his past and his written words. But if one of the many wingnuts out there spent half the time critiquing him as you have made with Romney, I might consider another candidate. And this is what needs to happen; we need more analysis and less fear.

    As an aside, back in the cynical portion of my brain there is a voice telling me that this “fear factor” is nothing more than a Clinton tactic meant to divide the Republican camp. And the MSM is spinning the web and laying the ground work, and we are falling for it, but I must remember, RATIONAL THOUGHT, RATIONAL THOUGHT, RATIONAL THOUGHT.

    Folks should stop with the low ball attacks and the cult of personality enshrinements and start looking at past performance and the words these candidates have spoken. And let’s not be afraid. I fear the steady march of a tyrannical government as much as anyone, maybe more, but that is also tempered by my faith in God. God will protect us; we only have to place our trust in Him…and less in men.

    I’ll echo the other comments and I applaud your analysis; great job! Great weblog!

    #5 to Mr. Paxson:

    I agree with you to a point, but one area that has concerned me over Thompson is his health. I have my doubts that he is healthy enough to hold the Office of President during this time of war. With that said, your appraisal is noteworthy, of which I will consider. My belief has been that Hunter, Paul, Tancredo, Brownback, (and now Keys), and to a lesser degree Thompson are men of conviction. All others have demonstrated political expediency at the loss of virtue.

    We can’t look into a man’s heart, and founders knew this, and this why the U.S. Constitution was written as it was. Let’s return to the U.S. Constitution.

    Comment by Brian — December 18, 2007 @ 10:02 am

  9. #8, thanks for the nice words and the substantive comment. Your theory about Bork and Robertson is a good one. Your concern that Rudy and esp Romney will betray Robertson and Bork is unfortunately a valid one.

    I become aware of Paul during the late 1990s on FreeRepublic, and was impressed with a lot of what he had to say. I know it’s to an extent a chicken-egg thing, but if he ever busted out of the second tier, I’d be inclined to give him more detailed scrutiny. I also think that on balance he’s gotten a bad rap from the rightosphere and right-talk, though he’s brought some of it on himself.

    If he’s serious about a prez run, he needs to figure out how to broaden his base and his visibility during the next 4 years. I’ll give him this — He has shown that he’s not just a Kucinich in it for the ego. He takes what he believes very seriously, and always has. The fact that folks like you are with him is in and of itself a reason to hope he continues his quest and breaks out for next time.

    Comment by TBlumer — December 18, 2007 @ 12:13 pm

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