Robert Bork Has Good News for All the Ladies

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Rober Bork, unable to think of a single instance of sex discrimination. Photo: Alex Wong/Getty Images

Robert Bork, whose 1987 rejection for a Supreme Court seat has been used by Republicans to justify all kinds of demagoguery, continues to use his post-rejection career to vindicate the decision to reject him. Here he is, in an interview with Lloyd Grove, explaining his view that there's no need to protect women from discrimination:

How about the Equal Protection Clause of the 14th Amendment? Does he 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.


Women aren't discriminated against anymore? At all? I'm not an expert on this topic, but there seems to be a fair amount of evidence suggesting continued discrimination. Let's start with, oh, the nation's largest employer. The class action suit alleging gender discrimination against Wal-Mart failed because hiring decisions are controlled locally, and the plaintiffs failed to prove that discrimination was centrally directed. But the evidence of discrimination itself is relatively strong. Here is the male versus female earnings at Wal-Mart for various levels of employment:

You can find more of the data here. Now, establishing sex discrimination can be conceptually tricky. The largest single element is work expectations that impact parents who need to spend time with their children, something that can affect women disproportionately without being consciously crafted to do so. You can debate whether, or to what extent, that sort of workplace practice is "discrimination." But the Wal-Mart lawsuit also has plenty of undeniable, straight-up sexism:

One of the plaintiffs named in the suit, Christine Kwapnoski, had testified, for instance, that a male manager yelled at female employees but not male ones, and had instructed her to “doll up.” Justice Scalia said that scattered anecdotes — “about 1 for every 12,500 class members,” he wrote — were insignificant.


We could start going down the list of other large employers, but I think the point that sex discrimination exists is pretty hard to contest.

Bork is currently an adviser to Mitt Romney. That doesn't mean that Romney shares Bork's views, or even that Bork actually provides advice to Romney. It does mean that Romney has chosen to associate himself with Bork and his beliefs, and to signal that he intends to appoint the kinds of judges of which Bork would broadly approve.