Robert Bork, Ctd.Posted: January 10, 2013 Filed under: Appellate Law | Tags: borking, robert bork Leave a comment
In a previous post following the recent passing of Judge Robert Bork, I questioned whether the ferocity with which certain groups on the political spectrum attacked Bork when he was nominated to the United States Supreme Court had created an unintended backlash that has turned Supreme Court nominations into a blood sport.
Linda Greenhouse has a terrific column in today’s New York Times. She offers a different perspective on a confirmation process that quickly acquired its own name: “Borking.” She argues:
Indisputably, there was some exaggerated rhetoric, and certainly the hearing had its rough edges; as Judge Richard A. Posner observed in Slate last month, that’s politics, and a Supreme Court confirmation hearing is at its core a political event. But what “borking” really amounted to was holding the nominee’s vigorously expressed views up to the light for public inspection. In five days of testimony, then-Judge Bork – a former professor of mine whom I liked and respected – had every opportunity to make his case. His ideas were fully aired and considered. By a vote of 58 to 42, the senators, having heard from their constituents, concluded that his constricted constitutional vision, locked into the supposed “original intention” of the framers, was not what the country needed or wanted.
Although it has been a long time since I watched the Bork confirmation hearings and read related stories in the meida, I think Linda understates the degree of exaggerated rhetoric. But her central point is nonetheless correct. She is absolutely right that Bork’s nomination to fill the swing vote seat created by the retirement of moderate conservative Lewis Powell meant that Bork’s thoughts, ideas and theories about constitutional interpretation were immensely important. Exaggerated rhetoric aside, Bork was of the view that much of modern constitutional law was, well, wrong-headed. Putting him on the Court could truly have turned back the constitutional clock. The public–through the Senate confirmation hearings–had every right to grill him extensively on his views.
I still think the Supreme Court nomination process has become a blood sport. And I still that it has become a blood sport in large part because of the Bork hearings. But Linda offers a compelling argument that the Bork hearings “provided a rare and valuable public seminar on the meaning of the Constitution, the methods of constitutional interpretation, and the different answers that competing methods offer to the most profound questions of individual autonomy and equality.”