Robert Bork, as everyone knows, was nominated for the Supreme Court in 1987, and was rejected by the senate.
Did his hearing, which brought a lot of attention to the Supreme Court nomination process, ultimately help or hurt getting good justices?
In my view, it hurt. The lesson that came away from it was to teach future nominees to obfuscate and dissemble when asked about their personal views.
Instead of answering the question, “what do you think about Roe v. Wade?” with the answer, “I agree with the Supreme Court’s decision that we can’t say enough about life before an embryo has reached 3 months of age to make abortion illegal,” or, “I disagree with [same stuff],” the standard answer has become, “I’ve never considered it. I’ve never discussed it with anyone, not even my spouse. I’ve never ruled on a case where it was relevant.”
And similarly for other hot-button issues - maybe the 2nd amendment’s meaning will now be a pass/fail question.
Instead of allowing the president to nominate the best justice (that fits his worldview), the president has to find somebody who keeps her head down, and is willing to bend intellectual honesty to get the job.
Or has it always been this cynical a process (and if that’s your position, I counter that “it’s always been terrible” is an easy answer, and I would ask for supporting evidence)?
Unsuccessful nominations to the Supreme Court of the United States
I would say that Carswell (and, maybe, Haynsworth) were considered in the same manner as Bork. (Various 19th century nominations probably followed similar patterns, but I don’t know the details. I watched the Carswell situation as it happened. It was quite similar to Bork, except that Bork, personally, was more prone to express his views publicly.)
On the other hand, for better or worse, Bork probably paved the way for Thomas to get on, despite serious reservations among many senators who were afraid to appear to be both obstructionist and racist.
He belongs in that exclusive category of people who look the same upside down as they do right side up.
Before his Supreme Court nomination he had been involved in some key anti-trust opinions. His work as a law professor has been cited in many of these cases.
Na’Kal: Breen! You’ve managed to import breen from Homeworld! How?
G’Kar: It, uh - isn’t actually breen.
Na’Kal: The smell! The taste…
G’Kar: It’s an Earth food. They are called Swedish meatballs. It’s a strange thing, but every sentient race has its own version of these Swedish meatballs! I suspect it’s one of those great universal mysteries which will either never be explained, or which would drive you mad if you ever learned the truth.
Maybe it has hurt, but Bork himself rejected (if I remember correctly) Griswold (the case that made it impermissible to outlaw contraceptives for married people), and that’s like someone being nominated right now who rejects Brown or something. The inference was that if you were against Griswold, you certainly would be against Roe, but it wasn’t just being against Roe. Griswold isn’t considered unsettled the same way Roe is.
I looked up Griswold. OK, being against the Supreme Court on that ruling is… atypical.
I don’t get what you mean saying it’s like being against Brown these days, though. Brown v. Board of Education is 195(4?), and Griswold is 1965.
Anyway, it’s a strange system to have senators ask judges how the would rule on cases, or what they think of existing case law, and be presumptuous enough to know what the correct ruling should be. Then again, I don’t have a better alternative to offer.
In the Federalist Papers, they (Hamilton? probably) gave a pretty good argument why the president should nominate and the senate should confirm supremes, but it’s all based on things like how much leeway the president would/should have, how much the president had to risk by nominating a favorite who wasn’t qualified, and how much dignity a senator would risk by rejecting a clearly qualified individual with whom he disagreed politically.
It seemed like with Bork (maybe because of my age), the whole veneer got dropped, and it just became nakedly about issues.
If he really was so strict a constructionist that he doesn’t recognize a right to privacy in the due process clause, maybe I’m wrong.
Once upon a time, the nomination hearings weren’t televised–Sandra Day’s was the first. And if I’m not mistaken, they used to be held in private, though I can’t find a cite right now.
While normally I am all in favor of open government, I cannot help but suspect that publicizing the hearings changed them from a technical and relatively collegial exercise into an opportunity for Senators to grandstand for the cameras and (ugh) “play to their base”. Bork was just a particularly vivid example.
I was just trying to pick a case where almost everyone agrees to agree with it. There are outliers who disagree with Brown, certainly, and outliers who disagree with Griswold (Rick Santorum is one, I believe).
Agreed. I would say that since Reagan first got elected, the lines in the sand became drawn over the possibility of Roe v. Wade being overturned. That was always looming as an opportunity in the minds of conservatives and a fear in the minds of liberals.
But we went on as usual with the bullshit that nominees would be judged on their “qualifications,” however nominees (like Scalia, for example) were careful not to leave a “paper trail” or ever comment on cases for fear of being shot down.
Bork changed all of that because he had a paper trail he couldn’t run from. He had spoken many times and published many works. There was no way to nuance the fact that he was a strong conservative who would overturn Roe v. Wade, but he was also very qualified for the position.
He forced the hand of the opposition to show that nominations are, and would become in the future, about politics.
That’s what I came in to mention. The Saturday Night Masacre displayed an element of unabashed political opportunism that many find unseemly for a Supreme Court justice.
Other way around, properly considered. If Roe v. Wade is ever overturned – if suddenly all the Pub pols who got elected on pro-life platforms might have a chance to actually do something about it – then the next elections after that decision, state and federal, will be the worst electoral disaster for the GOP since 1932.