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.
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.
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.
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:
A moderate position would be letting the states decide on abortion while the pro-life position would be nationally banning abortion with certain exceptions.
That’s only if regular ultrasound is unworkable.
Would a moderate position on civil rights be allowing each state to decide if it wants to allow segregation?
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?
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.
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).
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?
The political tides ebb and flow, but generally speaking yes, I’d say it’s a more recent consideration. See Jeffrey Toobin’s excellent The Nine for a description of how the GHWB, Clinton and GWB White Houses handled the nomination process, and what factors went into their thinking as to who to put on the Supreme Court. History teaches us that confirmation battles tend to break out when the nominee (a) is not as qualified as the President says he or she is, (b) is noticeably farther to one end of the ideological spectrum than the justice being replaced, or © has some baggage with which the Senate is uncomfortable.
A wise President will appoint someone who is not too old, of widely-recognized experience and integrity, of an ideology consistent with the President’s but not too far out there, after consulting privately with the top Senate Judiciary Committee members for their feedback as to the prospective nominees. If all of that is done, there should be no problems. If the President wants a fight, though, he can always find one.
No, as it is government sanctioned eugenics contrary to the Tenth Amendment.
I don’t think that follows. I could see a not-too-farfetched form of eugenics that decided it was in society’s best interests for all women to have all children of which they were physically capable, maybe in a country whose population had plummeted after war or other calamity, or which had relatively few fertile women.
That would be in an extreme scenario where presumably the US government has collapsed or the Constitution is suspended.
Perhaps, but if your objection to Little Nemo’s hypothetical is that it’s eugenics, then one form ought to be as repugnant as another. What matters is the government’s exercise of authority over childbearing. What’s sauce for the goose is sauce for the gander, isn’t it?
To give an analogy government has the power to prevent the murder of people but it can’t murder people themselves.
Good news for death row inmates, I guess.
Can this situation occur now? If a pregnant woman is injured in a car accident, and unable to speak for herself, and she will die if she does not have an abortion, and so will her pre-natal child, and there is no one of standing to express her wishes, would the government step in at that point? Could they order doctors to perform an abortion?
Rehnquist’s appointment to the CJ position a year earlier got heated,
IMHO it wasn’t that something changed during the Bork conformation hearings, it was that Bork was a lightning rod.
Add; who Bork was replacing (Lewis Powell, a moderate, often the swing vote in close decisions),
his controversial writings and positions on the CotUS,
his attitude towards the job (I forget the exact phrase but something like “an intellectual feast”*),
and probably most significantly his role in the Saturday Night Massacre
and you get a nominee that’ll be lucky to get out of the Judiciary Committee let alone get confirmed.
There was no way the guy that fired Archibald Cox and helped Nixon try to sabotage the Watergate investigation was ever gonna sit on the SCotUS.
CMC fnord!
*Which sounded worse than what he really meant, but there was/is an expectation that SCotUS nominees will take the position that the job is one of great and difficult decisions that they’ll agonize over before they finally come to a decision. Every case has the potential of being Dred Scott or Brown v Board. To my ear it sounded like Bork just couldn’t wait to start overturning as many of the “Warren Court” precedents as the court would hear.
Weird. Little Nemo brings up a distinction between “moderate” and “extreme,” and you want to respond by drawing a distinction between “moderate” and “pro-life.” I think I’m right in supposing that you don’t want to get mired into taking a position that your favored outcome is extremist, so let’s go with the notion that you thought you could get away with conflating two different senses of the term “moderate position” and drift from one toward the other when asked to defend as “not extreme” something you had called “moderate.”
Fact is, Curtis, that Little Nemo is right. The moderate position is the one that leaves the individual decision up to the individual (wrt legal activities undertaken by autonomous adults). All positions that permit outside persons, acting through the power of the government, to usurp that autonomy, are, by definition, extreme. That some positions are batshit insane in their extremeness does not render the less batshit insane positions moderate.