By Adam Winkler, a professor at UCLA School of Law.
On Tuesday, Republican presidential candidate Mitt Romney announced his legal policy team, which will advise him on constitutional questions, judges, and a host of regulatory issues. Romney's legal team is remarkable mainly for one of its three co-chairs: Robert Bork.
The choice of Bork (pictured) is a smart way for Romney to signal his conservative bona fides to Republican primary voters. Romney, the former Massachusetts governor, is widely perceived as too moderate for the Tea Party wing of the Republican Party. It's those voters, however, who are favored by the party primary system, which discourages moderation and pushes candidates of both parties to the extremes. And Romney has a major problem with the Tea Party: health care.
The biggest legal issue in the Tea Party today is the health care reform law, in particular the requirement that individuals purchase health insurance. Although Romney repeats his opposition to the law over and over, when he was governor he supported a state health care overhaul that included an individual mandate. Romney the businessman knew that the mandate was good policy. Romney the candidate knows that the mandate is bad politics in the Republican primaries.
Bringing on Robert Bork helps alleviate suspicion about Romney's constitutional politics among some Republicans. Bork is arguably the most famous conservative legal thinker in America. For primary voters worried about how a Romney presidency will be on constitutional issues, Bork's name offers an easy and reliable sign that Romney is no Souter/Kennedy Republican. He's a Scalia/Thomas Republican.
Although Romney's message is directed to conservatives, liberals should also listen. No one is talking about it much, but it is increasingly clear that Justice Ginsburg is not going to retire in time for Obama to replace her this term. (She'd probably have to do it soon; Senate Republicans might well filibuster a nominee right before the election.) Whoever wins the presidency will have the opportunity to appoint her replacement - along with any number of lower federal judges, who decide the large majority of cases involving the constitutionality of our laws, challenges to federal statutes, and other consequential matters.
By adding Robert Bork to his team, Romney is making clear to conservatives and liberals alike that Bork will be advising him on things like Supreme Court justices and other federal judges. It may not be enough to mollify the right but it should be plenty to worry the left.