I don’t know how any reasonable person can look back at the nomination of Robert Bork and be anything but grateful beyond words that he wasn’t confirmed by the U.S. Senate. But, these people exist. I don’t think Kennedy was far off in the speech he gave. What’s weird is that Bork’s belief system, which was still fringe at the time of his confirmation hearings, and now mainstream in the Republican Party.
About The Author
BooMan
Martin Longman a contributing editor at the Washington Monthly. He is also the founder of Booman Tribune and Progress Pond. He has a degree in philosophy from Western Michigan University.
I gotta say that I was extremely fortunate that the Bork nomination occurred at just the time I was taking “Supreme Court & The Constitution,” so being able to follow the Bork nomination at the same time I was delving into Supreme Court cases was a marvelous educational opportunity!
Yeah, I’m very pleased Bork didn’t make it. Kind of a drag that his “paper trail” did him in as that caused later Republican presidents to avoid those who wrote “too much” about their views.
I believe that by politicizing the role of the Supreme Court so, and in effect making judicial activism the Democratic litmus test for judges, Senator Kennedy has cheapened not only the integrity of the Supreme Court but also that of the Congress. What Bork and his ilk say is that the rights so many people want to find in the constitution don’t exist and if the people want to create them, then that is up to Congress. Is that really so bad? How about we hold guys like Kennedy accountable for pushing through constitutional amendments when required versus strong-arming judges into legislating from the bench? Regardless, the nomination process of Supreme Court Judges was surely debased from this moment forward, and that is certainly a legitimate part of his legacy, aside from killing a young woman in an act of criminal and callous negligence. Sorry, I can’t not mention it. In my book, he crossed a line in 1969 that he can’t ever come back from and this one act eliminates him for consideration for public service. I mean really, what would he have had to do to be considered too personally flawed to run for the Senate if not drunkenly driving off a bridge and leaving his passenger to die without using any cash advance?
Ashlyn-
It’s admittedly true that there was a time prior to Bork when nominees for the SCOTUS were approved by unanimous or near-unanimous votes. And it’s nice to be able to put a new justice on the court with near unanimous support. It also used to be really unusual to have 5-4 decisions. The court used to press hard for 9-0 decisions and it was disappointed if it got only 7-2 support for a decision.
If you look back, though, you’ll notice that country had grave difficulties achieving civil rights for all our citizens though the legislature. We couldn’t advance women’s rights through the legislature. The courts made some tough calls (judicial activism, if you will) that made this country a much more just nation.
Ideally, some of those decisions would have been better made by Congress. But that wasn’t going to happen back then. Now that Congress and society have caught up, it is possible for the courts to revert back to a more deferential stance. But not if it means taking away rights from people.
Bork had a coherent judicial position, but he wanted to upset some very crucial precedent. The courts became politicized because Congress was paralyzed. Now we fight over settled law in the confirmation hearings. It’s a shame, but a little less hyperbole and reactionaryism out of Congress would have made it all unnecessary.