Romney's Bork Barrel Politics

Last week, Republican presidential candidate and frontrunner Mitt Romney announced his legal policy team. This group of lawyers will advise Romney on a variety of legal questions, including regulatory issues, the scope of executive power, and, most significantly, judicial nominations. The team is quite large -- 63 people -- and includes a number of notable lawyers and legal scholars who will provide the candidate with practical advice about how to handle any number of issues.

Yet the real importance of the legal team is found in the man Romney chose as co-chair: Robert Bork.

Most people remember Robert Bork mainly for his failed bid to become a Supreme Court justice. He was nominated by Ronald Reagan in 1987 but the Senate rejected his nomination after a contentious debate that focused on Bork's archconservative legal views. Not only did Bork oppose the right of women to choose abortion, he thought the Constitution didn't even protect the right of married couples to use birth control. He argued for an extremely limited freedom of speech -- only political speech was protected, not artistic speech -- and for unusually expansive executive powers. A proponent of a strong view of states' rights, he even supported the right of southern states to impose poll taxes on voting despite the clear racially discriminatory purpose and effect of such measures.

Since then, Bork has advocated for renewed limits on the power of Congress, promoted the idea of super-majorities in Congress to "nullify" binding Supreme Court precedent, and complained about the expansion of gay rights. Bork is, in some ways, the intellectual leader of the Tea Party's legal vision.

And that's exactly why Romney chose him. Having Bork head up his legal team sends a message to Republican primary voters that Romney is a True Conservative. As a former governor of that bastion of liberalism, Massachusetts, Rommey is widely perceived by many conservatives as too moderate. The Tea Party, however, is the engine of the Republican party right now. Because primaries empower the most extreme elements of each party, Romney knows that he must appeal to the Tea Party to stand any chance at the nomination.

Romney has a major defect from the point of view of the Tea Party: healthcare -- or, as some Tea Party members refer to it, "RomneyCare." When he was governor, Romney supported a state overhaul of healthcare that included an individual mandate very similar to the one included in the federal healthcare reform law passed last year. Arguably the most important legal issue in the Tea Party today is the individual mandate, which they view as proof of government grown too big and too invasive of individual rights.

Ask him and Romney will tell you that he opposed the federal healthcare reform. Given his own support of a similar law in Massachusetts, however, his claim rings hollow.

No doubt Romney hopes that having his legal team headed up by Bork, who is so beloved by the right, will quiet some of the complaints from the Tea Party. If you were worried about my views of the Constitution, he's telling the Tea Party, you have nothing to be concerned about. I'm with you.

While Romney's choice sends a political message to conservatives, independents and liberals should also be paying close attention. Many of the latter like Romney precisely because they see him as a moderate Republican with a good business sense and a proven ability to work across the aisle. His selection of Robert Bork, however, should be a reminder that a Romney presidency will be a serious threat to the right of privacy and the other civil liberties Democrats and Independents hold dear.

Romney's shift to the legal right should be especially salient given the possibility that the next president will choose Justice Ruth Bader Ginsburg's replacement. At 78 years old and having battled cancer, Ginsburg is the Supreme Court justice most likely to retire between now and 2016.

If Romney is the one making that choice, Robert Bork will have his ear. That may not be enough to lower suspicions about Romney on the far right, but it should be enough to convince liberals and independents to be worried -- unless, of course, they want someone with Robert Bork's views sitting on the Supreme Court.