Bork on the Nomination
Posted by Joshua Claybourn on 3 July 2005 | 15 responses
Former U.S. Supreme Court nominee Robert H. Bork spoke about Justice Sandra Day O’Connor, her judicial philosophy, and the open seat on CNN on Friday with Daryn Kagan. The exchange was an interesting one:
KAGAN: Your comments today on Sandra Day O’Connor and her legacy on the court, please.
JUDGE ROBERT BORK, FMR. SUPREME COURT NOMINEE: Well, she’s a very nice person, but she is — as a justice, she has been — they call her the swing vote. That’s true. But that means that she didn’t have any reaffirmed judicial philosophy.
However, on the crucial cultural question, she has lined up with the liberal side on abortion, on affirmative action, homosexual normalization and so forth.
KAGAN: Excuse me. Judge Bork, do you think it’s fair to say she didn’t have an judicial philosophy? Perhaps that she didn’t have the same judicial philosophy that you share. But she probably — she possibly had a more moderate philosophy and was expressing that as a swing vote on the high court.
BORK: I think that referring to a moderate philosophy and a conservative philosophy and so forth is quite wrong. The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution.
She departed from it frequently. So that I wouldn’t call that moderate. I would call it unfortunate. But she is — she is — as a result, she often determined the outcome by swinging from one side to the other.
KAGAN: OK. Instead of looking back on Judge O’Connor, let’s look forward.
Whatever nominee, whoever is picked, whoever President Bush picks, they use your nomination process as an example of what they don’t want to happen. A lot of people — a lot of conservatives do wish that you had been confirmed and serving on the high court. Instead, it’s been Justice Kennedy, who has been more moderate than a lot of people think.
BORK: I wish you would stop using the word “moderate.” But go ahead.
KAGAN: Well, no. What would you use? How would you compare what Justice Kennedy has done instead of perhaps what you have done if you had been on the court.
BORK: I would call it activist.
KAGAN: OK. So you would like to see — actually, you bring up a good point. This is a time in U.S. history that’s not just talking about who is going to be the next person on the U.S. Supreme Court, but when the whole topic of what the judicial system and how it operates in this country is up for debate.
BORK: That’s right, because it’s really a cultural fight now. The Supreme Court has made itself into a political and a cultural institution rather than a legal institution, so that both sides see it in political terms.
Then there’s this humorous exchange:
KAGAN: I would like to ask you a personal question, Justice Bork. As what you went through back in 1987, what kind of advice would you give to whomever is nominated as it goes forward?
BORK: I don’t think I can give any very good advice. After all, as I once put it, it’s like asking Custer how to deal with the Indians. I didn’t do it very well. But I — you know, they’re going to — they’re going to insist upon answers to questions, “How will you vote on this? How will you vote on that?” Which I think is a very unfortunate practice, but that’s what they are doing now in the Senate.
You can access the complete transcript at this link (scroll down to the bottom of the page).
15 Responses to “Bork on the Nomination”
No wonder Bush supporters love Bork. There’s no such thing as moderates. There are only those who stick with the Constitution (Bork’s interpretation of it is the only valid one of course.) or who are against it. Where have we heard something similar before?
Bork is the guy that Nixon finally found in the Justice Department to fire special prosecutor Archibald Cox in the Saturday Night Massacre. After the Atty Gen and the Assistant Atty Gen refused to do so.
Bork is the curmudgeon who is upset that he didn’t make it to the US Supreme Court.
Bork is the nut who wrote the idiotic Sliding Towards Gomorrah (this title from memory).
For the life of me, I cannot figure out how anyone gives that man the time of day.
Many give Bork the time of day because he is a brilliant judge/scholar and Supreme Court advocate. I believe it was Justice Stevens who said that Bork was the best Supreme Court lawyer he’d ever encountered. His ideas are not as radical as his critics make them out to be. He appears more radical than he really is simply because he is incredibly outspoken, stubborn, and uncompromising. You’ll see a-lot of people criticize him, but not many people who are willing to debate him. In reality his views of the Constitution are no more radical than Cass Sunstein’s, yet Sunstein is given an overwhelmingly greater amount of deference simply because of his passive personality.
Jonathan, many give Bork the time of day because they agree with him. Let’s get something straight. Law & judging is not rocket science. I am a lawyer, and I was trained in science (physics, not rocket science) and I know the difference.
Your reference to Justice Stevens’s comment is, as far as I’m concerned, meaningless. It is nothing more than “appeal to authority.” What would you have expected him so say? That he believed that Bork was a nut?
I’ve read Bork’s books in years past, and as far as I’m concerned, he’s something of a nut. My opinion, of course. You’re certainly entitled to your opinion.
I disagree with Jonathan. I think Bork’s views are far more radical than his supporters either recognize or will admit and I think even a cursory examination of his writings supports that conclusion. I’ve written about this extensively, and about the fact that his views have changed so wildly over his career, while at each step he has arrogantly declared that his current view was the only conceivable correct answer. This is a man, after all, who argued that the first amendment protects only explicitly political speech and the government may censor anything non-political. Can you imagine how radically this nation would change if that view was adopted by the courts? It’s also a man who reads the 9th amendment out of the constitution entirely and who makes an absolutely surreal equivalence between an assertion of a given right and a desire to take it away.
I will merely point out, in a bit of expansion on one aspect of Ed’s point, that limiting the 1st amendment’s “speech” provision to “political speech,” as Bork has advocated, would empower the courts to determine what constitutes “political speech.” The judicial branch has had enough problems determining what constitutes an “establishment of religion” (another aspect of the 1st amendment). Requiring the judiciary to also determine whether speech is “political” (and hence protected by the US constitution) or non-political (and not protected) only exacerbates the judiciary’s problem.
Or it would enlarge the judiciary’s power. Would you all really want that?
My point is not to defend Bork’s ideas. He’s got quite a few ideas that are reasonably suject to a good deal of criticism–anyone who writes law review articles does. My larger point is that within the legal academy Bork’s ideas are far from representative of the “fringe,” and as close to the mainstream as a fair numer of Cass Sunstein’s, or many other liberal scholars,’ ideas are.
I’ve read a fair amount of Bork’s work, and conversed with Sunstein. I consider both rather bright, but both also have ideas that would lead our nation to look substantially different than it does right now. Yet, Bork is painted as a looney tune and Sunstein as a prodigy.
Law is not rocket science, Raj, but having gone to law school you know there is a difference between someone who can repeat black letter law and someone who can come up with coherent and workable constitutional theories. I too was trained in the sciences, and went to law school with a good numer of folks who studied sciences as well–some of them did a fabulous job of failing to understand simple legal theories.
It takes a solid mind to succeed in any academic environment, to reach the point of being appointed to a federal court, to argue a case in the Supreme Court, or to be a professor at Yale Law School. There is no doubt that Bork has some ideas that should be sujected to strict scrutiny, but that doesn’t mean he’s nuts. Just my opinion.
Forgive the typos; the B key on the laptop was slipping.
Jonathan-
I don’t think anyone here was defending Cass Sunstein. If he was nominated as a justice, I’m sure we could have all sorts of interesting conversations about his ideas too (and frankly, I’m not all that familiar with his work, only his reputation). But the fact that he has ideas that are “out of the mainstream” or “on the fringe” does not rescue Bork’s ideas from being labelled the same. Bork truly is, and was when he was nominated, a radical. Robert Bork’s America would be a far different – I submit and would happily defend “far worse” – place than it is now.
To be honest, I never understood why even his opponents always referred to him as a brilliant legal scholar. Having read a great deal of his scholarship over the years, I find little about it that is brilliant. Over his career, he has taken virtually every position that one could take on judicial philosophy, and at each stop along the spectrum he was completely indignant that anyone would even consider any other position the slightest bit credible. His primary talent, in my view, seems to be a gift for confident overstatement. That he has changed his position so often seems not to have diminished at all his confidence that whatever position he is taking at any given time is absolutely unassailable. He may have been an excellent advocate before the court, but as a legal scholar I don’t think he’s taken terribly seriously within the field, nor do I get the sense that he should be.
I do understand his point about the misuse of the terms moderate and conservative in terms of judicial philosphy. It seems to me a better characterization of a judicial philosophy would be originalist in the Scalia model or living constitution oriented.
Brent-
Scalia is not an originalist. He uses a lot of originalist rhetoric, but look at the Raich decision for a perfect example of why he is not an originalist, only an originalist of convenience. Clarence Thomas wrote an originalist opinion in that case, looking at the original meaning of the phrase “interstate commerce” at the time of the constitution. Scalia ignored that meaning and opted instead for following precedent that conflicted with that original meaning. He has done so quite often. Thomas is the closest thing to a genuine originalist on the court. Scalia is a very distant second.
“Many give Bork the time of day because he is a brilliant judge/scholar and Supreme Court advocate.”
Yeah, he’s brilliant because you agree with him and you’re brilliant. Not. The fact is that you’re both mediocre thinkers and rather low on the ethical scale.
ts, don’t forget, they run the web site. Also, don’t forget, don’t believe everything you read on the web.
I learned the last when I was posting on FreeRepublic.com
ts,
My success-o-meter is fairly detached from my ability to be perceived as brilliant–especially by folks with e-mails that rhyme with “trewth-seeker@yahoo,”–so it’s not really surprising, or original, that you rate me as a mediocre thinker. It’s probably true of far more people than would like to acknowledge it. The blogosphere, and popular hard-copy publications, are chock full of mediocre ideas propagated by mediocre thinkers. I dont’ think mass-media is the best place to go looking for brilliant ideas.
The ethics thing though? Ouch! (Reaching for my “Blogger Ethics” textbook.)
I wonder how CNN, that bastion of media bias that only shows the ideas of the far left (according to the right) would ever dare to have such a prominent conservative on their show? It’s baffling.