The New York Times today carries an editorial criticizing the Romney campaign for naming Robert Bork as one of three chairmen of a "Justice Advisory Comittee." The Times writes that Judge Bork "once opposed integration of public accommodations by the 1964 Civil Rights Act, calling it 'unsurpassed ugliness.'"
The link the Times provides as evidence for that claim is not to anything written by Bork, but to a summary by the Senate Judiciary Committee, which, in 1987, was in the hands of a Democratic majority.
The Times itself once carried Bork's explanation of the 1963 article in The New Republic in which he used the term:
KENNEDY: Sure, I'll ask - ask the staff to get those. I mean, does -do you remember, or you don't remember, the use of words "a principle of unsurpassed ugliness"?
BORK: I remember that. I also remember, Senator, that I said that racial segregation by law was also of unsurpassed ugliness. And what I was - well, let me back up and tell you how this article came about and why....
you know, one has to know the evolution of my thinking about political matters to understand where that article came from and why I no longer agree with it and haven't agreed with it for a long time. One has also to know that as Solicitor General I enforced the rights of racial minorities in court, often further than the Supreme Court was willing to go.
You should also know, Senator, that on my present court I have frequently voted for black plaintiffs in various kinds of civil rights or voting rights cases.
BORK: I had come to Yale as an avid free-market type. I had gotten into classic economics, which teaches that by and large it's much better to let people arrange their own affairs and their own transactions than to try to govern them by law.
I made the what I now regard as not uncommon intellectual mistake of trying to apply those principles to social interactions. I don't think it works there because you haven't gotten a marketplace to discipline people. But it is not uncommon for free market economists to display libertarian principles.
This article came about because I was arguing with Alex Bickel about this subject. I at that time thought that any coercion of the individual by government had to be justified by a principle that did not lead government into all kinds of coercion that should not be there.
And I could not see the general philosophical principle here that justified this coercion. I also saw - I also could not see a general philosophical principal that would justify segregation by law. I was leaning on the side of individual freedom.
I think that was wrong because I don't think any general principle is available. I now take what I would call - at least what Bickel described as the Edmund Burke approach, which is you look at each measure -this is a political matter, not a judicial matter - you look at each measure and ask whether it will do more good than harm. Had I looked at the civil rights proposals in that way, I would have, as I later came to, that they do much more good. In fact, they make everybody much happier and they help bring the nation together in a way that otherwise would not have occurred....
governmental activity, I said in this article, was un - was wrong if you - if you seg - if you segregate by race I said that was a principle of unsurpassed ugliness, too, and you will read my writings from beginning to end and you will never find a mark of racial or ethnic hostility.
And so long as the Times is going to be in the position of blackballing people for positions they took 49 years ago, it is worth remembering some of the New York Times's own old editorial positions, as Gene Dattel did in his book Cotton and Race in the Making of America: The Human Costs of Economic Power. The Times editorialized, even after Lincoln's election, "We do not believe it is either just or wise to introduce into discussions of the day any schemes for the abolition of Slavery. It must be distinctly understood that we of the North have nothing to do with that subject, that we propose no Congressional action upon it, but that we regard it as exclusively under the distinction and control of the Slaveholding States." After the war, when the Supreme Court struck down the Civil Rights Act that had sought to give blacks equal access to public accommodations, the Times editorialized, "The Court has been serving a useful purpose in thus undoing the work of Congress." The New York Times, in other words, was against the Civil Rights Act (or at least a Civil Rights Act) long before Judge Bork ever was. And say what you will about Judge Bork, at least he, unlike the Times, never opposed abolition.