Personally, I would be looking for those people who, as Judge Bork used to say, originalists or strict constructionists. . . . I certainly think the standard ought to be, and it’s one that I make no, ah, message about trying to hide. I think people ought to be looking for those who would serve on the courts who are going to strictly interpret the United States Constitution. . . .
I mean, what the Democrats did in obstructing appointments like Judge Bork back in the 1980s, I didn’t like that, but they certainly had the right to do it. Because they felt their elections had consequences. Well, as one member of the United States Senate, I certainly carry, or will carry that same ideology.
Mourdock’s position is so extreme that even conservative Justice Antonin Scalia rejects it. “Strict constructionism” refers to the philosophy that the Constitution’s words must be interpreted as narrowly as possible, regardless of whether that is the most natural reading of the text. In a seminal essay on the proper role of judges in a society, Scalia quite correctly called Mourdock’s method of reading the Constitution a “degraded form of textualism.” As Scalia warned, “[a] text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.”
To get a sense of what America would look like under Mourdock’s degraded constitution, one need not look any further than Robert Bork, the man Mourdock twice held up a as a model nominee. Bork once described the federal ban on employment discrimination and whites-only lunch counters as “unsurpassed ugliness.” He called it “utterly specious” to suggest that women have a constitutional right to use contraception. He believes that the Constitution does not protect women from gender discrimination — and he reiterated this view as recently as last October, when he said it was “silly” to think that women are discriminated against.
So Mourdock’s model judge would transform the Constitution into a miserly document that strips women and millions of other Americans of their most basic rights to receive equal work for equal pay and to make their own decisions about birth control and their own bodies, and Mourdock is, sadly, not alone. Likely GOP presidential nominee Mitt Romney shares Mourdock’s affinity for Robert Bork. Indeed, Romney even named Bork as the co-chair of his “Judicial Advisory Committee.”