Now, Robert Bork is just about the most famous Supreme Court rejection in history.
While that might not be saying much, it is often cited as the start of a very dirty trend in modern politics to make the Supreme Court selection process highly polarizing, and taught the new generation of nominees to be as bland as possible, even going so far as to pretend that they’d never considered Roe v Wade.
Was it fair? Was he an extreme jurist?
Was it because he participated in the firing of the special prosecutor investigating Nixon - at Nixon’s behest - after two other people resigned in protest?
I was too young to recall Judge Bork’s confirmation process, but I do note these comments, from an interview in 2011
So, yeah, an extremist. And so I don’t begrudge a Democratic senate from saying no; it’s their constitutional prerogative.
The year is 2525. Man is still alive. Woman has survived. The Mars colony is flourishing. Fusion power has enabled mankind to fight climate change. War is no longer even a thought in anyone’s mind. And Republicans are still bitching about Robert Bork’s rejection.
Yes the guy deserved it. If for nothing else, for being Nixon’s stooge in the Saturday Night Massacre. If not for that, for his right wing extremism.
Bork was nuanced and could not survive in a (modern for 1987) world of 30 second sound bites. He was a professor that required law review articles to flesh out his positions.
The article speaks for itself, but he is saying that he disagrees with anti-contraception laws and racially restrictive covenants. But he thinks that a judge hitting the softballs out of the park opens up more problems than it solves. It is very intellectual and should be encouraged.
The more important point is that Scalia, Thomas, Kavanaugh, Barrett, and Gorsuch likely agree with every word Bork said, but the lesson is to be silent about it.
That’s the way Republicans want to tell the story. They want to claim that Bork was the first time any Supreme Court nominee was rejected for partisan reasons. And the Democrats started it.
This ignores the way Republicans rejected Abe Fortas’ nomination for Chief Justice in 1968.
The difference is, admittedly, there were no televised hearings in 1968. And that Bork was probably the smartest lawyer in the whole country at the time. Brilliant guy. And, the (then) modern media distorted his positions by claiming that a Supreme Court under a Justice Bork wouldn’t allow you to buy birth control pills or condoms, an extremely dishonest and unfair attack.
Just to make sure this is perfectly clear, it wasn’t just Democrats that rejected Bork. First, two Democrats voted for him, and six Republicans voted against him. So, it was a bipartisan rejection.
I’m not sure what you’re point is. This is always portrayed as a Democrats vs. Republicans thing, but it was actually a bi-partisan thing. The Republicans talk about revenge for what Dems did to Bork, but they should look in the mirror.
The Senate hearings for Supreme Court nominees are essentially a job interview, albeit one performed on the public stage. Any nominee coming in to the hearing with the believe that their past actions, behaviors, and political views are not subject to consideration is ill-prepared or terminally naive. The belief that the nomination process itself should be apolitical is belied by the fact that it is run by a political body (albeit one that is assumed to be less innately partisan than the House of Representatives).
There persists the believe that Supreme Court justices are expected to not let political views or changes in social context influence their opinions as if their decisions carry the weight of papal infallibility, which is ridiculous on the face of claims of ‘originalist doctrine’. Justices are expected to interpret law in context to the Constitution as the governing standard rather than create novel interpretations ex officio, but quite obvious the political tenor of decisions has changed radically over the last two hundred and thirty-odd years, from support of human slavery and institutional segregation to support for civil and voting rights (just to pick one area in which jurisprudence has changed radically). Asking what a nominee’s positions are on various political issues is entirely in the bounds of assessing whether the nominee is suitable for the current social mores and philosophy.
As for Bork…he got his Senate hearing despite multiple controversies, which is more than Merrick Garland can say, since his was short-stopped on such a transparently partisan basis. So did Kavanaugh despite reasons to question his ethics beyond the multiple allegations of his adolescent proclivities for sexual assault.
Votes are funny things. If you know something is guaranteed to fail (or pass), you are free to “vote
your conscience”. I can imagine that some or those Republican votes would have been different if there was a chance to confirm Bork.
Tell me if I have this right, he argued that “equal protection under the law” didn’t apply at all at the federal level, and didn’t apply to women?
This is a person we want deciding constitutional cases? Really? Seriously? A person who says out loud that it’s perfectly legal for the government to deny people equal protection?
I suppose I shouldn’t be shocked that Republicans supported him 40-6.
Technically, that is a very ‘originalist’ position from the era when non-Europeans were ‘savages’ suitable only for eradication or as chattel, and women and non-land owners don’t have a right to the electoral franchise. If your perspective is that the Constitution should be strictly interpreted per the consensus of the authors, then it is certainly consistent. It is not, I think, the kind of interpretation that would be accepted today by other than a small minority of people today across a wide array of political creeds, hence why Bork faced such harsh questioning, a.k.a. “Borking”.
Lesson: if you don’t want to face pointed questions about your controversial political positions, suspect ethics, and questionable behavior, don’t submit yourself for a position requiring a Senate nomination.
Originalism as a legal philosophy is intellectually absurd (you can’t possibly determine the original intent of words written by a committee - the founders disagreed strongly amongst themselves about the meaning of what they wrote), but the practical effect is to construe rights as narrowly as possible.
So I think Bork’s position was that the 14th amendment only applied to the civil rights of the freed slaves (which would be wrong, as it was written to address “persons”, whereas contemporary amendments like the 15th used terminology to refer to freed slaves), because that’s what was intended by those who wrote it. And extending it to other oppressed, marginalized, or excluded groups is “judicial activism”.
(Note that this is my general understanding of originalist criticism of judicial overreach, not some researched opinion of his writings)
This is the first time I’ve ever heard anyone saying Bork was an exemplary lawyer. I’m not saying he was a bad lawyer or a bad judge. I’ve always seen him as a qualified lawyer and judge; somebody who had hundreds of others at the same level he was at.
I think the characteristic that made Bork stand out was that he was a loyalist. If you were his boss, he would do what you wanted done. Which is arguably a good quality in a lawyer but not so much in a judge.