Robert Bork, the hard right former judge and failed Reagan Supreme Court nominee, has died. Despite coming just eight senators’ votes away from the Supreme Court, Bork quickly faded into obscurity after his failed confirmation vote. He resigned his seat on the United States Court of Appeals for the DC Circuit shortly after losing his shot to sit on the Supreme Court, and then reemerged into the public eye only occasionally to publish books with Biblical titles such as The Tempting of America or Slouching Towards Gomorrah.

There are many reasons why Bork was clearly ill-suited to the Supreme Court, but he was also an intellectual giant with a keen understanding of both political and judicial process. At his best, Bork was a voice for the kind of judicial restraint that conservatives all but abandoned the minute President Obama took office. Progressives will find little to like in Slouching Towards Gomorrah — which is, at it’s heart, a rejection of cultural modernity — but Bork is right to warn in that book against an ideology that “think[s] democracy is tyranny and government by judges is freedom.” Bork intended those words as an attack on social liberals, but they aptly describe the kind of conservatism that would declare Obamacare unconstitutional.

At times, Bork was even willing to direct his calls for judicial restraint at the decisions most beloved by the far right. Lochner v. New York, the 1905 decision which held that basic laws intended to protect workers are unconstitutional, is experiencing a renaissance among the conservative legal movement’s most ideological thinkers, but Bork wanted no part of it. He called Lochner an “abomination” that “lives in the law as the symbol, indeed the quintessence of judicial usurpation of power.”

Similarly, in 1983, at a time when Republicans were ascendant and eager to write their policy preferences into our founding document, Bork penned a thoughtful essay warning that a Balanced Budget Amendment would do little more than transfer power to a judicial branch that was poorly-equipped to set budget policy. As Bork explained, the result of such an amendment “would likely be hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results. By the time the Supreme Court straightened the whole matter out, the budget in question would be at least four years out of date and lawsuits involving the next three fiscal years would be slowly climbing toward the Supreme Court.” The 234 members of the House who voted for much more intense version of the same amendment would have done well to listen to Bork’s counsel.

Bork came of age at a time when liberal judges dominated the courts. He spent the formative years of his career watching the Supreme Court hand down decisions that he hates — and, lest there be any doubt, the targets of his ire vindicate the bipartisan coalition of senators who kept him off the high Court. Bork once said the federal ban on employment discrimination and whites-only lunch counters is rooted in a “principle of unsurpassed ugliness.” He called a Supreme Court decision holding that married couples have a right to contraception “utterly specious” and a “time bomb.” And he recently called the very idea that gender discrimination exists “silly,” adding that women “aren’t discriminated against anymore.”

And yet, Bork’s early years taught him a healthy caution against a too-powerful judiciary. Today’s conservatives, by contrast, have only known one thing — an ideological Supreme Court eager to achieve the conservative movement’s goals from the bench. So they have always seen overreaching judges as their allies. There is a lot not to like about Robert Bork’s record, but America would be a better place if modern conservatives recognized what Bork did — that the courts are a terrible place to push your economic agenda.

Although GOP presidential candidate Mitt Romney has dodged questions about whether he believes the Constitution protects a woman’s right to use birth control, one of Romney’s top legal advisers is a leading opponent of the right to contraception. Robert Bork, the former federal judge who serves as co-chair of Romney’s Justice Advisory Committee, described the first Supreme Court case to protect access to contraception as “utterly specious” and a “time bomb.”

In a surprising departure from conservative orthodoxy, Tea Party Sen. Rand Paul (R-KY) broke with Romney’s legal adviser yesterday, stating that the Constitution does indeed protect a right to birth control:

“I think some conservatives get this thing wrong. They say, ‘Oh you don’t have a right to privacy because it’s not in the Constitution.’ Well, there’s not a right to private property in the Constitution either,” the libertarian-leaning senator said. . . . “I would say there is a right to privacy. It precedes the Constitution, it pre-exists, it comes, if you believe in God, from your Creator. It comes in a natural way. It’s yours,” Paul said in a speech on Internet freedom at the conservative Heritage Foundation.

Paul said he agrees with the landmark Supreme Court case Griswold v. Connecticut, which first declared that the Constitution protects privacy and invalidated a state law banning access to contraceptives.

Paul’s statement contains a number of errors — the Fifth Amendment does explicitly protect certain private property rights, for example — but it is also a clear break from the views of many conservative legal thinkers, including one of Romney’s top advisers.

Next week, hard right U.S. Senate candidate Richard Mourdock is likely to defeat the merely very conservative incumbent Sen. Richard Lugar (R-IN) in the Republican primary. On MSNBC this morning, Mourdock showcased part of his appeal to Tea Party conservatives. If elected, Mourdock promised to obstruct judges who do not resemble one of the most ill-considered nominees in recent American history:

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.

Watch it:

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.”

In 1987, the Senate rejected Judge Robert Bork’s nomination to the Supreme Court in light of Bork’s long record of extremism. Bork once described the federal ban on whites-only lunch counters as “unsurpassed ugliness.” He claimed that it is “utterly specious” to suggest that women have a constitutional right to use contraception. And he believes that the Constitution does not protect women from gender discrimination. Nor has Bork moderated his views in the twenty-five years since he was denied a seat on the Court. Bork said it was “silly” to say that women are discriminated against as recently as last October.

Mitt Romney, however, apparently finds this kind of outlook quite appealing, because he selected Bork to co-chair his “Justice Advisory Committee.” At a recent campaign event, Vice President Biden went after Romney for his poor judgment in selecting Bork for this role:

[Biden] addressed specifically the issue of contraception, saying that he “noticed today” that Judge Robert Bork, “a fine man, and a man who I disagree with a lot,” had been named as the Romney campaign’s “justice coordinator.” (He appeared to have read an editorial in today’s New York Times which addressed this fact. Bork was actually named as a chair of Romney’s “Justice Advisory Committee” last August, a Romney spokesperson confirmed.)

He discussed the Bork confirmation hearings, which he oversaw as chairman of the Senate Judiciary Committee, and the discussion of Griswold vs. Connecticut.

“So we’re kind of returning to the past. You know that movie, ‘Back To the Future?’ It feels like to me that we’re going Back to the Future,” he said.

Not too long ago, of course, the Romney campaign spent days pretending to believe that President Obama’s own view of motherhood was somehow in question because someone who has no association with his campaign said something dumb on CNN. Meanwhile, Romney continues to trust Bork as one of his top legal policy advisors — even after Bork claimed that there’s no such thing as discrimination against women and that women who think there is are “silly.”

Yesterday, Democratic strategist and CAP Action board member Hilary Rosen — a partner in a PR firm who has no role in the Obama campaign — said on CNN that Ann Romney has “never worked a day in her life.” Almost immediately, the Romney campaign falsely labeled Rosen an “Obama adviser” and demanded the Obama campaign distance itself from this non-advisor. The Obama Campaign swiftly responded that Rosen’s comments were “inappropriate and offensive.”

Now that President Obama has distanced himself from this fake advisor’s statement, it’s time for Mitt Romney to show his commitment to women’s rights by also distancing himself from actual members of his campaign who’ve disrespected women or women’s rights. Unlike Rosen, these anti-woman Romney supporters are official advisors to Romney’s campaign or top campaign surrogates that Romney has proudly shared a stage with:

• Donald Trump: The flamboyant reality show star is “a top Mitt Romney surrogate” according to Politico’s Mike Allen. Trump recorded robo-calls supporting Romney in primary states and he participated in “a ton of talk radio for Romney in Michigan, Arizona and Ohio.” Trump also has a long history of sexism, including telling the male contestants on his reality show to “rate the women” contestants on how sexually attractive they are. Calling TV personality Rosie O’Donnell a “big, fat pig” and an “animal,” after she criticized Trump. And, just this month, offering to expose his “very, very impress[ive]” penis to a top woman attorney. The top Romney surrogate, however, is also quite unfazed by criticism of his sexism. As he told Esquire in 1991, “it doesn’t really matter what [the media] write as long as you’ve got a young and beautiful piece of [expletive].”
• Bay Buchanan: Yesterday, in an attempt to overcome Romney’s weak poll numbers with women voters, the Romney campaign hosted Bay Buchanan on a press call as an official campaign surrogate. Bay, the sister of disgraced former TV pundit Pat Buchanan, has a long history of opposition to women’s rights. In a 2003 speech on the “four failures” of feminism, Bay Buchanan claimed that women are being “sold a bill of goods” when they pursue careers instead of having children, and she compared modern women to “alleycats” with respect to sex.
• Robert Bork: Former judge and failed Supreme Court nominee Robert Bork is the co-chair of Romney’s “Judicial Advisory Committee.” Bork opposed the Civil Rights Act of 1964, which bans employment and other discrimination against women, calling the idea that laws can require private companies to cease discriminating a “principle of unsurpassed ugliness.” More recently, the top Romney legal advisor mocked the very idea that gender discrimination even exists. In Bork’s words, “[i]t seems to me silly to say, ‘Gee, they’re discriminated against and we need to do something about it.’ They aren’t discriminated against anymore.”

Mitt Romney either believes that women who claim gender discrimination are “silly” or he does not. He either believes that women who express their sexuality are “alleycats,” or he does not. And he either believes that it is acceptable for one of his campaign’s top surrogates to offer to expose his genitals, or he does not. If the Obama campaign needs to disassociate himself from its non-advisor, than the least Romney can do is prove that he does not think women like Lilly Ledbetter are silly by abandoning his campaign’s most sexist advisors and surrogates.

Last August, former Massachusetts Gov. Mitt Romney announced failed Supreme Court nominee Robert Bork as the co-chair of his “Judicial Advisory Committee.” Bork’s selection was a clear sign that, if elected, Romney will appoint hard right justices with little regard for how the Constitution protects ordinary Americans. Bork once described the federal ban on whites-only lunch counters as “unsurpassed ugliness.” He believes that the government is free to ban contraception outright. And he even thinks the government can outright criminalize sex.

In a recent Newsweek interview, Bork gives America a taste of the legal advice that Romney finds so compelling:

How about the Equal Protection Clause of the 14th Amendment? Does [Bork] still think it shouldn’t apply to women?

“Yeah,” he answers. “I think I feel justified by the fact ever since then, the Equal Protection Clause kept expanding in ways that cannot be justified historically, grammatically, or any other way. Women are a majority of the population now—a majority in university classrooms and a majority in all kinds of contexts. It seems to me silly to say, ‘Gee, they’re discriminated against and we need to do something about it.’ They aren’t discriminated against anymore.”

Statements like this one should make every American grateful that Bork never made it to the Supreme Court. Perhaps Bork never heard of Lilly Ledbetter, who spent nearly two decades earning just a fraction of what her male colleagues earned doing the same work. Maybe Bork is simply unaware that the average woman earns just 77 cents for every dollar earned by a male counterpart. But, in any case, it is clear that his perception of the world and the Constitution has no basis in reality.

Whatever Bork might have been, however, he is now nothing more than an angry old man who long ago resigned his federal judgeship and faded into obscurity. Mitt Romney, on the other hand, is a leading presidential contender and could potentially be in a position to select new Supreme Court justices. Before anyone casts a vote for or against Romney, the former governor should explain clearly and without reservation why he selected a top legal advisor who believes that gender discrimination no longer exists and that the Constitution has nothing whatsoever to say about it — and Romney must be equally clear about whether he plans to appoint judges and justices who share Bork’s dismissive attitude towards discrimination.