Should Robert Bork have sat on the Supreme Court?

[dalej42]

As a college student, I opposed Robert Bork being appointed to the Supreme Court. I'll agree that some of the opposition's tactics were too much, however. The Democratic Senate knew they had a weakened President Reagan after the 1986 elections.

Still, the Robert Bork that emerged after those confirmation hearings is far more extreme than the Bork who could have potentially sat as a justice on the Supreme Court.

Would Bork have been a horrible judge if his nomination had proceeded without controversy? Bork isn't a Clarence Thomas.

I don't think Bork would have been as bad as he was made out to be. I'm not sure that George H.W. Bush would have appointed Thomas if Bork had won.

[jtgain]

I'm not sure I agree with what you have said. I think that Bork on the court would be exactly like Bork as he is now. And, from what I can tell, Bork and Thomas are ideologically similar.

And, remember, when Marshall retired, Bush was almost certainly looking for an African American to take his spot, but he certainly wasn't going to appoint a liberal. Clarence Thomas was one of the few to fit the criteria.

I think that with Bork on the court, Planned Parenthood v. Casey goes 5-4 the other way and access to legal abortion is a patchwork of state laws today. That's the most telling thing I could see, but there were many other decisions that would have "5-4" the other way with Bork.

[John Mace]

Bork was clearly well qualified to sit on the court. My own sense is that presidents should be able to appoint whomever they want, unless that person does not possess a strong enough CV to make him or her competent in that position. I don't think anticipating how someone might rule on any given issue is relevant.

Of course, that's an old fashioned view these days, and I don't claim it to be objectively true in any sense.

[Richard Parker]

I think it's a genuinely close call, even if one takes John Mace's view that one ought not oppose a candidate based on predictions about how he or she will rule.

Bork is more conservative than even Thomas, which is really saying something. He believes all the same things as Thomas, no right to privacy, no substantive due process, extremely limited commerce clause power, and adds some things that even Thomas doesn't believe. As one example, Bork believes that the First Amendment only protects speech that is explicitly political, with no protection for scientific or literary speech. In his view, the government can censor, say, evolution textbooks.

Bork got 4 "not qualified" votes from the ABA, and no Supreme Court nominee who has received even a single such vote has ever been confirmed. Those votes may well have been political, but can we really say that there is no view of the Constitution that would cause us to reject a nominee? Is there no intepretation of the Fourth Amendment, say, that would cause us to doubt the ability of a nominee to faithfully read the Constitution?

To me, the Senate should at least ask whether the nominee's views regarding past decisions are based on a sincerely held, internally consistent, and reasonable view of the Constitution. Even if I'm the Dean of Yale Law School, if I say the Third Amendment gives me the right to punch people named Jane in the face, you should reject me. So the question is whether Bork's views on the First Amendment and on interpreting the word liberty in the Fourteenth Amendment, to name two examples, are genuine outcomes from a sincerely held, internally consistent, and reasonable view of the Constitution. I am not convinced that is true, from what I know. I'm not saying its impossible, but I think pointing to the fact that he's an Originalist does not quite get us all the way there.

[Typo Knig]

Bork's role in the Saturday Night Massacre in my not at all humble opinion disqualifies him from holding any position of public trust ever. Bork should be on a global pan-media ignore list.

If Bork had played an identical role in a scandal where a mayor was fixing parking tickets, there is no way in hell Bork would have been up for the SCOTUS.

Then there are his legal opinions, which waaay out there. (ETA - thanks Richard Parker for detailing that more succinctly than I could, and in a way that counters some of Bobby's "I'm a victim - people said wrong things about me" BS. Bobby is not a victim, and people said precisely accurate things about him.)

The real nail in the coffin of his SCOTUS nomination was his answer to why he wanted the job. Having the answer to that question is a basic step in any political campaign. Bork's answer was that being on the Supreme Court would be an "intellectual feast". Really? Really?!!! Listen bub, you want an intellectual feast, do the NY Times crossword in ink. But if you want to sit on the highest court in the land, you need to at least refer to "Equal Justice for All". It's carved on the front of the building, fer John Jay's sake.

So don't give me this "well qualified" crap. There were a lot of better qualified Reagan-friendly potential nominees.

[Richard Parker]

Originally Posted by Typo Knig

Bobby is not a victim, and people said precisely accurate things about him.

I'm not sure I would go that far, because like any candidate for an important office there were some scurrilous attacks and misrepresentations. But I don't think it was any different treatment than what Sotomayor got.

It is true that the popular narrative of Bork having been borked for being honest about his views in the hearings is a little misleading. He definitely tried to make his views more palatable to the Senate. He testified in the hearings about his view of settled precedent in a way that contradicted his earlier statements about the value of precedent on questions of constitutional law. He also decided, for apparently the first time in the hearings, that women should be protected by the Equal Protection clause (albeit under a watered-down a "reasonable basis" test).

It is true that even where he adjusted his views for the hearings, he was still very open about his positions. But he had no choice. He had been so outspoken about his views throughout his career to that point that everything was on the table. He had written dozens of magazine articles about popular judicial issues of the day. So he had to try and defend those views.

[BrainGlutton]

Originally Posted by dalej42

Still, the Robert Bork that emerged after those confirmation hearings is far more extreme than the Bork who could have potentially sat as a justice on the Supreme Court.

Was he? Or did he simply no longer have a reason to softpedal his extremism?

[The Second Stone]

For reasons that have been mentioned by others, Bork was supremely unsuited to be on the USSC. Yes, he is a smart guy, but his opinions are radical and subject to change when the moment and motive suits him. His views on speech and literature, mentioned above, are disqualifying. That isn't the law, and shouldn't be.

As for the opinion that anyone the President chooses should be confirmed unless they are a nitwit, that almost got us Harriet Myers.

Both Myers and Bork got where they did by doing anything they possibly could for their President. That is not a quality you want in a judge of any sort. You want somebody who can say "no" to their colleagues and recuse themselves when their friends have a case.

Just because someone has a law degree and a license doesn't mean they are qualified to be a judge. They must be neutral. The Senate can and should reject underqualified nominees.

[gonzomax]

Richardson and Ruckelhaus resigned rather than fire Cox. They felt the President did not have the authority to fire an "independent prosecutor". Cox had no trouble doing it. It was seen as a belief in very strong executive powers. Then his belief that there is no" rights of privacy ' in the constitution was troubling since it was part of the Roe v Wade reasoning. The ACLU opposed him. That was one 3 times they ever did. He was a" lightning rod"choice. Then he lectured the politicians in the approval hearings . He was asking for it.

[jtgain]

Originally Posted by Typo Knig

The real nail in the coffin of his SCOTUS nomination was his answer to why he wanted the job. Having the answer to that question is a basic step in any political campaign. Bork's answer was that being on the Supreme Court would be an "intellectual feast". Really? Really?!!! Listen bub, you want an intellectual feast, do the NY Times crossword in ink. But if you want to sit on the highest court in the land, you need to at least refer to "Equal Justice for All". It's carved on the front of the building, fer John Jay's sake.

But that's a bullshit fail on a job interview type question.

Why does anyone want to be on the Supreme Court? Hell, I'll bet a majority of posters here would like that job, lawyer or not! So he didn't give a nice pat answer; meh, so what?

He's only radical in a modern sense. He is spot on in a textual sense. For example, I'm sure that the founders didn't care about science or literature with regards to the first amendment. Perhaps such things should be a part of a free and progressive society, but don't put words that were written in 1789 into a 20th century context. Pass an amendment to the constitution that protects such things.

It's a great judicial view that keeps policy making with the elected bodies where it belongs.

[Richard Parker]

Originally Posted by jtgain

He is spot on in a textual sense. I'm sure that the founders didn't care about science or literature with regards to the first amendment. Perhaps such things should be a part of a free and progressive society, but don't put words that were written in 1789 into a 20th century context.

Textualism does not mean, as you suggest, refusing to "put words that were written in 1789 into a 20th century context." There is no alternative to interpreting constitutional text in a modern context when ruling on questions of constitutional law. The only question is how to determine what those words mean.

Bork says you look to the framer's intentions for what the words mean (or at least did at the time of his failed confirmation, his philosophy may have evolved a bit since then). In practice, this means finding whatever evidence has been preserved of the thoughts expressed by those framers who happened to speak or write about their intentions, and more often than not privileging some of those intentions over others since they often conflicted or were ambiguous.

As it happens, the scope of the First Amendment with respect to scientific or artisti speech is one question on which an Originalist method actually arrives at a pretty clear answer. Nothing in the text limits the First Amendment to political speech, and the history is very clear about the scope of the coverage:

The last right we shall mention, regards the freedom of the press. The importance of this consists, besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed or intimidated, into more honourable and just modes of conducting affairs.

1 Journals of the Continental Congress 108 (1774). [This is in a letter from the Continental Congress explaining the core rights sought by the colonists.]

This is one question that Originalism should be able to answer quite nicely, it just happens to come out the opposite way from Bork's position.

[NotreDame05]

Originally Posted by The Second Stone

As for the opinion that anyone the President chooses should be confirmed unless they are a nitwit, that almost got us Harriet Myers.

Both Myers and Bork got where they did by doing anything they possibly could for their President. That is not a quality you want in a judge of any sort. You want somebody who can say "no" to their colleagues and recuse themselves when their friends have a case.

Just because someone has a law degree and a license doesn't mean they are qualified to be a judge. They must be neutral. The Senate can and should reject underqualified nominees.

For reasons that have been mentioned by others, Bork was supremely unsuited to be on the USSC. Yes, he is a smart guy, but his opinions are radical and subject to change when the moment and motive suits him. His views on speech and literature, mentioned above, are disqualifying. That isn't the law, and shouldn't be.

I am not sure what constitutes as a "radical opinion" and perhaps the difficulty in actually conceptualizing and applying such a phrase renders the exercise of basing the suitability of a judicial nominee on such a question futile. Perhaps few if any judicial nominees would be appropriate for selection to the U.S. Supreme Court when relying upon such a phrase.

I disagree with the characterization of Bork as an individual whose opinions change as often as the wind blows and I am not entirely sure what you are basing your remark upon when describing Bork's free speech view as not the law?

[ElvisL1ves]

Bork in Slouching Towards Gomorrah:

Bork first traces the rapid expansion of modern liberalism that occurred during the Sixties, arguing that this legacy of radicalism demonstrates that the precepts of modern liberalism are antithetical to the rest of the American political tradition. He then attacks a variety of social, cultural, and political experiences as evidence of American cultural decline and degeneracy. Among these are affirmative action, increased violence in and sexualization of mass media, the legalization of abortion, pressure to legalize assisted suicide and euthanasia, feminism and the decline of religion.

Plus, in his hearings, he denied that there's a right to privacy, indicating a disdain for substantive due process. And he wants an amendment to allow Congress to override Supreme Court decisions. Does someone with no understanding or respect for the balance of powers principle belong on the Court?

[Steve MB]

Originally Posted by jtgain

It's a great judicial view that keeps policy making with the elected bodies where it belongs.

That notion of "democracy" is the sort of thing that the Founders regarded with horror (especially after the unfortunate results when it was attempted in France). The entire point of a Constitution was to constrain the range of available "policy" as tightly as reasonably possible (after discovering that the Articles of Confederation had constrained it a bit too tightly).

[NotreDame05]

Originally Posted by Richard Parker

I think it's a genuinely close call, even if one takes John Mace's view that one ought not oppose a candidate based on predictions about how he or she will rule.

Bork is more conservative than even Thomas, which is really saying something. He believes all the same things as Thomas, no right to privacy, no substantive due process, extremely limited commerce clause power, and adds some things that even Thomas doesn't believe. As one example, Bork believes that the First Amendment only protects speech that is explicitly political, with no protection for scientific or literary speech. In his view, the government can censor, say, evolution textbooks.

Bork got 4 "not qualified" votes from the ABA, and no Supreme Court nominee who has received even a single such vote has ever been confirmed. Those votes may well have been political, but can we really say that there is no view of the Constitution that would cause us to reject a nominee? Is there no intepretation of the Fourth Amendment, say, that would cause us to doubt the ability of a nominee to faithfully read the Constitution?

To me, the Senate should at least ask whether the nominee's views regarding past decisions are based on a sincerely held, internally consistent, and reasonable view of the Constitution. Even if I'm the Dean of Yale Law School, if I say the Third Amendment gives me the right to punch people named Jane in the face, you should reject me. So the question is whether Bork's views on the First Amendment and on interpreting the word liberty in the Fourteenth Amendment, to name two examples, are genuine outcomes from a sincerely held, internally consistent, and reasonable view of the Constitution. I am not convinced that is true, from what I know. I'm not saying its impossible, but I think pointing to the fact that he's an Originalist does not quite get us all the way there.

Well, I think perhaps the best approach is to leave it to the political process, a political process not incumbered with considerations of what is a "reasonable view of the Constitution." The last few confirmation hearings and the present political climate in America leads me to conclude what constitutes as a "reasonable view of the Constitution" is rarely going to enjoy a consensus or unanimity across political parties on fundamentally important issues, such as abortion, certain kinds of speech, etcetera, but rather the political proclivities and beliefs of the individual will be the deciding factor of what constitutes as a "reasonable view of the Constitution."

I think Bork's interpretation of the word "liberty" in the due process clause of the 14th Amendment is accurate and reasonable. Of course, the justices who have decided Roe and Lawrence v. Texas disagree, along with probably every Democrat in the House and Senate.

You have, however, focused upon a very important question. By what criteria should nominees to the U.S. Supreme Court be evaluated? I think this is a very important question but I do not find a answer of "reasonable view of the Constitution" to be tenable.

[Little Nemo]

In an ideal world judges should be appointed for their abilities. But we don't live in that world. Judges are appointed for political reasons.

Bork was nominated for political reasons by the right. He was defeated for political reasons by the left. Neither side can claim it was acting on some higher principle

[ElvisL1ves]

You make that sound like it's a bad thing. It isn't. The Supreme Court is a political institution by definition. It does make law. That's its function.

It can do so either with or without reference to the effects of the law it makes, or on some spectrum in between, but who would really want its rulings to reflect the mindset of "the judicial monastery" and not those of the politically aware? Before you get into deploring "politics", remember what that's all about - differing views of how our society should operate, and what law needs to be made and enforced to make that happen. We as a society generally reject the cramped, idiosyncratic "originalist" and "textualist" views that Bork and those of his colleagues on the Court now share, and there is absolutely nothing wrong with rejecting nominees who do on that basis. It's actually required of us as responsible citizens acting through our elected representatives.

[Little Nemo]

Politics can be a system for reconciling different views into a single whole. Or it can be a battle between different views with one winner taking it all.

[crowmanyclouds]

Originally Posted by jtgain

... He is spot on in a textual sense. For example, I'm sure that the founders didn't care about ...

the Ninth Amendment?
Really think Bork's "inkblot on the Constitution" view would be spot on with the Founder's view of it?

CMC fnord!
Ignore the actual debate over the 9th, just focus on the 'I don't get it therefor it's meaningless' part.

[NotreDame05]

Originally Posted by crowmanyclouds

the Ninth Amendment?
Really think Bork's "inkblot on the Constitution" view would be spot on with the Founder's view of it?

CMC fnord!
Ignore the actual debate over the 9th, just focus on the 'I don't get it therefor it's meaningless' part.

Well, having read some of Bork's book, what he actually said was should an ink blot exist on some phrase in the U.S. Constitution (I cannot recall what specific phrase he referred to but I think it was the 9th Amendment), the judiciary would not be justified in just making up some word in its place, and thereby, conjuring up some meaning.

[Saint Cad]

The problem with judge both extreme left and right is interprting the Constitution as what they think it should say versus what it does say. Since the Constitution is (or was) a fairly conservative method of government, we here about activist judges (almost always liberal) creating laws where none exist through an interpretation of the Constitution (like Roe v Wade through a overextention of the right to privacy) but a Justice Bork would have done the same thing but rewriting the laws to the right. In some cases that wouldn't be a bad thing like the original meaning of the ICC but in other areas like the 1st Amendment he would have been an activist on the other side of the aisle.

[Richard Parker]

Originally Posted by NotreDame05

The last few confirmation hearings and the present political climate in America leads me to conclude what constitutes as a "reasonable view of the Constitution" is rarely going to enjoy a consensus or unanimity across political parties on fundamentally important issues, such as abortion, certain kinds of speech, etcetera, but rather the political proclivities and beliefs of the individual will be the deciding factor of what constitutes as a "reasonable view of the Constitution."

It's fair to believe that our actual Senators would not be especially principled in applying my preferred test. But that doesn't make the test itself bad, or incomprehensible.

Here's how I would apply it. Can you assert a set of principles other than your personal policy preferences that guide your interpretation of the Constitution in a way that is rationally connected to the known purposes of the document? Scalia's mode of Textualism meets this test, and is a reasonable view of the Constitution. If he convinced me in a confirmation hearing that he would follow his espoused test, I would vote to confirm. I also think Breyer's view is a reasonable view. If he convinced me in a confirmation hearing that he would follow his espoused test, I would vote to confirm.

The spectrum of reasonableness is really very wide, and it is an exceedingly easy test to satisfy. But it is not so wide that a reasonable view of the Constitution is that it means whatever my policy preferences say it means, or that it means whatever my faith-based reading of history tells me it means.

Originally Posted by NotreDame05

I think Bork's interpretation of the word "liberty" in the due process clause of the 14th Amendment is accurate and reasonable.

I agree. That is one of the beliefs he shares with Scalia and Thomas, and I think it is on the reasonable side, though it happens to be wrong.

The beliefs that make me think he doesn't have a reasonable jurisprudence are, among others, his First Amendment jurisprudence, and his ad hoc and apparently evolving views of whether the Equal Protection clause applied to more than just race.

[Little Nemo]

Since the Constitution is (or was) a fairly conservative method of government

If the writers of the Constitution had been interested in a conservative method of government, they would have kept the Articles of Confederation. Or rule by London.

I think it's pretty safe to say that one of the main guiding principles that motivated the creation of the Constitution was "feel free to change whatever you don't like."

[Qin Shi Huangdi]

Originally Posted by Little Nemo

If the writers of the Constitution had been interested in a conservative method of government, they would have kept the Articles of Confederation. Or rule by London.

I think it's pretty safe to say that one of the main guiding principles that motivated the creation of the Constitution was "feel free to change whatever you don't like."

No it isn't-that would have been a mobocracy.

Anyways if Mr. Bork had been nominated a more moderate approach to abortion may have been taking like the state of Oklahoma is doing right now.

[Little Nemo]

No it isn't-that would have been a mobocracy.

This has nothing to do with mobocracy. The point I made was that the Constitutional authors were not a bunch of people who thought that government should be based on tradition. If they thought people should be ruled by what people thought two hundred years earlier, they wouldn't have been writing a new constitution.

Anyways if Mr. Bork had been nominated a more moderate approach to abortion may have been taking like the state of Oklahoma is doing right now.

The United States does have a moderate position on abortion. It lets people decide for themselves. Those who want abortions can have them. Those that don't want abortions, don't have to have them.

An extreme position would be the government deciding when people have abortions - it doesn't matter if the government is prohibiting abortions or making them mandatory.

[Cyberhwk]

Originally Posted by Curtis LeMay

Anyways if Mr. Bork had been nominated a more moderate approach to abortion may have been taking like the state of Oklahoma is doing right now.

You think requiring a woman be penetrated vaginally with an ultrasound probe is "a more moderate approach?" (A source you probably trust)

[ElvisL1ves]

Originally Posted by Richard Parker

Can you assert a set of principles other than your personal policy preferences that guide your interpretation of the Constitution in a way that is rationally connected to the known purposes of the document?

Can you define a way to recognize that society, and its views of justice and the proper role of government, have evolved significantly since the 18th century without preemptively dismissing the concept as "personal preferences" ?

[NotreDame05]

Originally Posted by Richard Parker

The spectrum of reasonableness is really very wide, and it is an exceedingly easy test to satisfy.

I agree. That is one of the beliefs he shares with Scalia and Thomas, and I think it is on the reasonable side, though it happens to be wrong.

The beliefs that make me think he doesn't have a reasonable jurisprudence are, among others, his First Amendment jurisprudence, and his ad hoc and apparently evolving views of whether the Equal Protection clause applied to more than just race.

Here's how I would apply it. Can you assert a set of principles other than your personal policy preferences that guide your interpretation of the Constitution in a way that is rationally connected to the known purposes of the document?

Well, here is my problem with this approach. I feel we are merely substituting one question which is difficult to apply with another one. The entire "rationally connected to the known purposes of the document" is not much of an improvement in terms of avoiding really, partisan bias as to what constitutes a judicial philosophy "rationally connected to the known purposes of the document."

In the end, you are likely going to get what presently exists, partisan bickering and application of the test you devised to evaluate judicial nominees. First, they are going to disagree as to what the "purposes of the document" are and next whether some judicial philosophy is rationally related to these purposes, and I suspect and have every reason to believe the disagreement in application of this test will be predicated upon partisan belief.

But it is not so wide that a reasonable view of the Constitution is that it means whatever my policy preferences say it means, or that it means whatever my faith-based reading of history tells me it means.

Well, this prose is probably most convincing in making my point. There are and probably always will be those who believe in a living, breathing, and evolving U.S. Constitution and what the document says, as ruled upon by the justices, is reasonable, even if and where it is based upon policy preferences or faith based reading of history, as such an approach is reasonably consistent with a document whose genius is its adaptability to the times by judicial review.

It is also possible there will be disagreement within the group. For example, I can see those appealing to textualist repudiating a textualist judicial nominee on a single issue or a few issues, because they view the nominees textualism as irrational and unreasonable to the purposes of the U.S. Constitution.

[Bryan Ekers]

Originally Posted by Curtis LeMay

No it isn't-that would have been a mobocracy.

Sure, if the mob needed two-thirds of three-fourths of all the submobs to agree.

[ElvisL1ves]

(Pedant hat ON)

The word is "ochlocracy".

(Pedant hat OFF)

[Richard Parker]

Originally Posted by NotreDame05

The entire "rationally connected to the known purposes of the document" is not much of an improvement in terms of avoiding really, partisan bias as to what constitutes a judicial philosophy "rationally connected to the known purposes of the document."

But again, I think you're arguing that the test I outlined could be badly applied. I don't doubt that it could. I was espousing what I think would determine my vote if I were a Senator, so of course I would be applying my own test in good faith.

Beyond that, I don't want to get too caught up in the exact wording I chose in my previous post. I meant to express a general idea rather than establish a standard for all time. If the phrase "rationally connected to the known purposes of the document" is so vague that our own personal biases creep into it even if acting in good faith, then I will try to express the idea more concretely.

The power of judges to interpret the Constitution itself derives from the Constitution. Therefore, that power should be consistent with the purpose of the document. Many purposes of the Constitution are known, or at least universally accepted. For example, we know that the purpose of the Bill of Rights is to limit the powers of, among others, Congress to infringe on key individual liberties through legislation passed by majority rule. Thus, if your proposed theory of constitutional interpretation says that amendments in the Bill of Rights mean whatever Congress says they mean, that theory may be sincerely believed and internally consistent, but it is not "rationally connected to the known purposes of the document."

I think there are a whole range of potential theories that would similarly fail the test of whether they are even arguably consistent with what we know the Constitution is supposed to accomplish. You raise the prospect that a nominee might profess that the Constitution's meaning can be left entirely to the discretion of judges to rule based on their whims, because it is reasonable to think the Constitution was meant to be adaptable. Could such a theory really be said to be consistent with the fundamental reasons for having a written constitution? No. To pick a particular problem, it fails for the same reason the theory offered above about congressional deference fails; it would permit infringement upon minority rights because a judge happens to agree with Congressional policy. But on a deeper level, this theory would view the Constitution merely as inspiration, on the same level of a philosophical essay, not as the legal document it was clearly intended to be and as we've treated it for centuries. There's adaptable, and there's Jell-O, and a Jell-O theory of interpretation is inconsistent with even the basic purposes of the document that we all agree upon.

[NotreDame05]

No, I am telling you the test you espoused will do nothing to achieve your goal but rather will be used in a partisan manner first, and the achievement of your goal will be hit and miss. In other words, the norm will be to apply your test badly, and subjectively.

[Really Not All That Bright]

Elvis had it right: SCOTUS is political. While in theory, it's a neutral and independent tribunal which rules on the issues which come before it based solely on the facts and the Constitution, in reality it's composed of humans. As much as arbiters of the Constitution, the Court has become arbiter of public sentiment. Thus, abortion is now legal everywhere, we are free to stick appendages into the orifices of our choosing, and so on.

I don't think there's anything wrong, given that, with politicizing appointments. As Elendil's Heir noted in another thread, the President is mandated to appoint Justices with the advice and consent of the Senate - language not seen elsewhere in the Constitution, where the Senate just has to consent.

[Richard Parker]

Originally Posted by Really Not All That Bright

Elvis had it right: SCOTUS is political. While in theory, it's a neutral and independent tribunal which rules on the issues which come before it based solely on the facts and the Constitution, in reality it's composed of humans. As much as arbiters of the Constitution, the Court has become arbiter of public sentiment. Thus, abortion is now legal everywhere, we are free to stick appendages into the orifices of our choosing, and so on.

The Court is political, therefore it should be political?

[Really Not All That Bright]

The Court is going to be political anyway, therefore you may as well work within that framework. If one party decides to appoint the most qualified individual regardless of personal ideology, while the other party continues to nominate the craziest fuckers it thinks will make it past the Senate, the Court will not only be political, it will also be skewed.

[Richard Parker]

Sure. Just as my proposed test would likely be misapplied by actual Senators, it also ignores the reality that the Court is a political hot potato. Err, the opposite of that. A political cold potato? What do you call it when you want to be the last one with the potato? Musical chairs?

Anyway, I just think that argument is on a sort of different level from the basic question of whether a given candidate should sit on the Court. We might say that a given candidate should sit on the Court on an abstract level, but that the court arms race and pragmatic demands compel another result. Even then, I wonder if it isn't possible to reach a kind of detente in the confirmation battles. Unfortunately, I don't know who the GOP's Gorbachev is. Lindsey Graham?

[Really Not All That Bright]

I don't think anyone ever told Gorbachev to come out of the closet. Just saying.

[ElvisL1ves]

Originally Posted by Richard Parker

The Court is political, therefore it should be political?

Please. The Court is political by its very purpose and function. There's no point arguing that it shouldn't be, but that doesn't stop some from trying anyway.

[Elendil's Heir]

From Wiki: "Robert Bork, often considered an originalist, has likened the Ninth Amendment to an inkblot. Bork argued in The Tempting of America that, while the amendment clearly had some meaning, its meaning is indeterminate; because the language is opaque, its meaning is as irretrievable as it would be had the words been covered by an inkblot. According to Bork, if another provision of the Constitution were covered by an actual inkblot, judges should not be permitted to make up what might be under the inkblot lest any judges twist the meaning to their own ends...."

And consider the smudge (or is it?) in the Fifth Amendment: http://www.bbc.co.uk/dna/h2g2/A28880382

I opposed Bork's nomination at the time, and interviewed him when I was a reporter for my local newspaper two years later; I still believe he should not have sat on the Supreme Court. His role in the Saturday Night Massacre was deplorable. He is a very, very conservative jurist. Although Ted Kennedy's opening salvo against him on the floor of the U.S. Senate at the time of his nomination was clearly hyperbolic, it was essentially accurate. Bork's view of the Constitution was and is, IMHO, too deferential to the executive and too skeptical of privacy and individual rights. I would not want to live in a country in which Bork's jurisprudence prevailed.

And I must disagree with John Mace: the Senate has turned down Supreme Court nominations since the earliest days of the republic for the nominees' views on the issues of the day, or what we might call "ideology." A good, even excellent, CV is not enough: http://en.wikipedia.org/wiki/List_of..._United_States

Bonus fun fact: Among Bork's students during his time at Yale Law School were Bill Clinton, Hillary Rodham, Anita Hill, Robert Reich, Jerry Brown and John R. Bolton.

[foolsguinea]

Bork instead of A. Kennedy, eh?

Hm.

I don't know if that would be seen as the triumph of reactionary politics or just create a reaction to the reaction. I suspect that Bush would have lost in 1988 if Bork had been confirmed.

[Elendil's Heir]

Nah. It would've been too soon for Bork to have made much (if any) difference, and no one's ever lost an election over a Supreme Court appointment, anyway. Even the stinkers haven't been a factor in any President later losing an election that I can think of.

[KarlGauss]

Originally Posted by Richard Parker

. . . Bork believes that the First Amendment only protects speech that is explicitly political, with no protection for scientific or literary speech. In his view, the government can censor, say, evolution textbooks . . .

I'm not trying to be argumentative, nor do I want to hijack this interesting thread. But I'm very curious about your assertion that Bork would restrict 'free speech' to only that which is political. Is there a cite for that? (and, one that shows unequivocally that what you claim about Bork in this respect is true) Thanks.

[yorick73]

Originally Posted by ElvisL1ves

Please. The Court is political by its very purpose and function. There's no point arguing that it shouldn't be, but that doesn't stop some from trying anyway.

The purpose of the court is NOT to be political. That's the whole point of having lifetime appointments. Although individuals will have political viewpoints, in theory these should not affect how judges decide cases. You can think a political idea is a great idea while at the same time finding it unconstitutional. A political court will try to bend the constitution to allow ideas that are not constitutional just because they think it is good policy. Take Roe v Wade. Almost everyone agrees it was tortured logic even if you agree with the outcome.

[Richard Parker]

Originally Posted by KarlGauss

I'm not trying to be argumentative, nor do I want to hijack this interesting thread. But I'm very curious about your assertion that Bork would restrict 'free speech' to only that which is political. Is there a cite for that? (and, one that shows unequivocally that what you claim about Bork in this respect is true) Thanks.

He explicitly said so in his 1971 article, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971). Most of the article is on Google Books, if you'd like to verify for yourself.

He moderated his public position somewhat over the years. Time magazine had this to say at the time of his Supreme Court hearings:

Though Bork testified that he had altered [his free speech] views some time ago, last week marked the first public retreat from his stands. . . . His capitulation was all the more surprising since only two years ago, in an interview with Conservative Digest, Bork said his First Amendment philosophy was "expressed pretty much in that 1971 Indiana Law Journal piece."

[Qin Shi Huangdi]

Originally Posted by Little Nemo

An extreme position would be the government deciding when people have abortions - it doesn't matter if the government is prohibiting abortions or making them mandatory.

A moderate position would be letting the states decide on abortion while the pro-life position would be nationally banning abortion with certain exceptions.

Originally Posted by Cyberhwk

You think requiring a woman be penetrated vaginally with an ultrasound probe is "a more moderate approach?" (A source you probably trust)

That's only if regular ultrasound is unworkable.

[BobLibDem]

Originally Posted by Curtis LeMay

A moderate position would be letting the states decide on abortion while the pro-life position would be nationally banning abortion with certain exceptions.

Would a moderate position on civil rights be allowing each state to decide if it wants to allow segregation?

[Little Nemo]

A moderate position would be letting the states decide on abortion while the pro-life position would be nationally banning abortion with certain exceptions.

If you feel the government has a right to take the decisions about abortions away from the people involved, do you then agree in principle that the government could make some abortions mandatory? If the government can tell one woman she can't have an abortion, can't it also tell another woman she can't have a baby?

[Ace309]

Originally Posted by Richard Parker

Even if I'm the Dean of Yale Law School, if I say the Third Amendment gives me the right to punch people named Jane in the face, you should reject me.

To be fair, sometimes Janes deserved it.

What was the basis of the ABA's "Not Qualified" ratings? I agree with John Mace that a SCOTUS appointment is the President's prerogative and should generally be confirmed, so the reasoning for those ratings would be highly relevant to my judgment.

For those of you more up on your SCOTUS history, is it true that Bork's confirmation hearings were the first to be similar to the current, more cutthroat hearings, as opposed to something less adversarial? If so, then the effect is probably much stronger than just how Bork would have voted from the bench.

[Measure for Measure]

I seriously doubt whether Ted Kennedy's tirade had any effect on the outcome of the Senatorial vote.

Bork was thumbed down because of swing votes like Howell Heflin of Alabama. In addition to his eyebrow-raising comments on staris decisis, Bork couldn't bring himself to provide a full throated defense of Brown vs. Board of Ed. Southern Democrats were pretty conservative in those days, but they nonetheless very much wanted to keep certain resolved racial disputes off the table and safely in the past.

At any rate, Thomas, Scalia and Alito all survived confirmation hearings. The far-right has plenty of representation in that institution, whose most allegedly liberal members over the past several decades (eg Brennan, Warren) were all appointed by Republican Presidents (Marshall notwithstanding).

[Ace309]

Wouldn't there be an effect on nominations, though? The impression that I got was that Roberts was selected in large part because he was both qualified and noncontroversial. Is that a recent consideration, or has it more or less always been the case?