Bork Reconsidered, Part I

borkIn my third year of law school, the speaker at our law review banquet was a Boston Globe reporter who talked about a book he was writing on the Robert Bork confirmation battle.  I didn’t pay much attention to his speech, other than to complain loudly to all within hearing that a judge would have been a much more prestigious invitee than a reporter.  Ethan Bronner’s book, Battle for Justice, came out the following year and has since been recognized as a classic treatment of the modern Supreme Court nomination process.

The nomination of Judge Sonia Sotomayor provided me with a convenient excuse to reread Bronner’s treatment of the Bork confirmation debate and to consider whether the lessons learned during that experience have any application to the Obama Administration’s first Supreme Court nominee.  The first, and most obvious, conclusion is that extreme rhetoric about the nominee has become an accepted tactic by the opponents of the party in power.  Senator Edward Kennedy’s denunciation of “Robert Bork’s America” as a land where women are forced to seek back-alley abortions and lunch counters are re-segregated will rightly be remembered as the low point in a long political career.  Similarly, the former Speaker of the House, Newt Gingrich, has had his reputation irrevocably damaged by his casual labeling of Judge Sotomayor as a “racist.”  However, in both cases, the extreme rhetoric served the larger purpose of energizing the base against a nomination and simultaneously engaging the attention of the public at large by raising the stakes of the confirmation. 

Both speakers chose their words carefully for effect and not for accuracy.  Despite the feeling of many that Senator Kennedy crossed the line of reasoned discourse, it is apparent that even today some establishment political figures (and not just those at the fringes of their parties) are comfortable using harsh rhetoric as a tactic to oppose a qualified judicial nominee.

My second observation has to do with the way that the situations of Bork and Sotomayor differ, rather than their similarities.  Bronner’s thesis is that the Reagan Administration’s policy goal of rolling back the civil rights gains of prior decades was not shared by the majority of Americans.  Even white Americans in the South were content with the contemporary status quo and unwilling to relive a contentious period in their history.  Bronner contends that Judge Bork’s ideology ran counter to a broad public acceptance of the Supreme Court’s jurisprudence on individual and civil rights under the Constitution.  In a long and distinguished career, Judge Bork had been outspoken about the need to overturn mistaken precedent.  Judge Bork identified himself with the “second wave” of legal thinkers who would correct the doctrinal mistakes made by their predecessors’ first attempts to apply the Constitution in uncharted areas.  Regardless of his credentials as a legal thinker, Bronner cites polling data showing that Judge Bork’s interpretations of the Bill of Rights and the Fourteenth Amendment were unpopular with the public.  Opponents of Judge Bork’s nomination made sure that senators in swing districts saw this data.

What Judge Bork failed to do during his confirmation hearings was to make obeisance to the doctrine of stare decisis, and to assure the Senate (and the country) that he would limit his strict construction of individual rights to open questions of interpretation.  He was given countless opportunities during his testimony to do so, and the best example he could give of a non-originalist constitutional interpretation that he would nonetheless uphold as settled precedent was the expansive breadth given to the Commerce Clause.  He could not even rouse himself to acquiesce in the right of married couples to use contraception.  Unless one views a presidential election as giving the president a free hand to remake the Supreme Court however he sees fit (a principle unsupported by either the text of the Constitution or the history of Supreme Court nominations), it appears legitimate to oppose a Supreme Court nominee on the grounds that they are unwilling to give any weight to the prior decisions of the Court.

In the Manichean world view of strict constructionists, all of those who do not share their views are “judicial  activists.”  Therefore, that label has been affixed to Judge Sotomayor by her critics despite the fact that her record demonstrates a conscientious effort to decide cases in accord with established precedent.  This characteristic, once considered a hallmark of judicial restraint, is apparently a defect when the precedent is not of one’s liking.  The key difference between Judge Bork and Judge Sotomayor is that the former challenged the status quo while the latter seeks to perpetuate it.  The traditional meaning of the phrase “activist” applies to the former type of judge, not to the latter.  Having succeeded in giving the phrase “judicial activist” a negative connotation with the public, there is now a concerted effort by some to redefine the type of judge who qualifies for the epithet.  However, as long as stare decisis is the bedrock of Supreme Court jurisprudence, attempts to brand moderates like Judge Sotomayor as “judicial activists” will fail.

I will have more to say on a comparison of the Bork and Sotomayor nominations in an upcoming post.

This Post Has One Comment

  1. Richard M. Esenberg

    A few things.

    First (and perhaps most importantly), the speaker at my law review banquet one year (2L) was Ken Kesey, author of One Flew Over the Cuckoo’s Nest and impresario of LSD as chronicled in Tom Wolfe’s The Electric Kool Aid Acid Test. He was more interesting than a federal judge (or, I suspect, Ethan Bronner) although in a different way. Sort of an “are we still on Earth?” way.

    Second, I agree that the rhetoric in the confirmation process is overwrought.

    Third, I agree that Bork ran into trouble because he insisted on a certain juridical integrity that resulted in statements that were politically harmful. Griswold is hard to justify even if its result is desireable.

    Fourth, what he said was exacerbated by how he said it, his personality amd even his appearance. (See, e.g., wanting to be on the Court for an “intellectual feast.”)

    Fifth, putting aside whether it is accurate to say that the Reagan administration (or Bork) were about rolling back civil rights gains, I wonder just what views Bork expressed that were unpopular in a way that impacted his confirmation. Griswold could be one. Roe might be another although the public attitude on Roe seems to consist of support for the opinion and opposition to much of its particulars. My sense is that there were many elements of the Warren Court project that were and are not particularly popular.

    Sixth, I am not sure that I buy the contrast with Judge Sotomayor. What got Bork into trouble was his record as a scholar, no? Sotomayor has no such record. She’s been a judge constrained to follow precedent and its not surprising that she would have done so.

    Seventh, I do believe that the use of the phrase “judicial activism” has become promiscuous. But. as I am sure you can guess and may even agree, I do not believe that philosophies of restraint (see. e.g., Scalia’s A Matter of Interpretation) can be reduced to following precedent or even not overturning the actions of other branches of government.

    I look forward to Part II.

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