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.
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.
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.
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.
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. :mad:
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.
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.
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.
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.
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.
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:
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.
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?
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?
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).
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.
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
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.
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.
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.