Posted on 10/19/2005 12:08:34 PM PDT by Crackingham
"I am convinced, as I think almost all constitutional scholars are, that Roe v. Wade is an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority. I also think that Roe v. Wade is by no means the only example of such unconstitutional behavior by the Supreme Court."
This bit of public truth-telling was committed by Robert Bork, then a professor at Yale Law School, when he testified before a Senate Judiciary subcommittee on June 1, 1981.
Ironically, Bork made this statement about Roe in the midst of testimony in which he explained why he opposed a law that would have defined life as beginning at conception for 14th Amendment purposes.
Six years later, however, liberals used Bork's intellectual honesty against him when he was nominated to the U.S. Supreme Court by President Ronald Reagan. On the day after Bork's nomination, The Washington Post quoted his 1981 statement on Roe in three different places in its "A" section. The New York Times quoted it twice.
For this and other acts of candor on constitutional issues, Bork was defeated, 58-to-42, in a Senate that had a 55-to-45 Democratic majority.
In trashing Bork, the liberal establishment tried to send a blunt message to would-be strict-constructionist Supreme Court justices (and the Republican presidents who might nominate them): Openly defend the original meaning of the Constitution as honestly as Bork defended it in his career, and we will do everything we can to stop you from being confirmed to the high court.
Despite the fact that his party now enjoys a 55-to-45 majority in the Senate, President Bush seems to have taken this message to heart. He has now made two Supreme Court nominations, John Roberts and Harriet Miers. Neither can be accused of committing Borkian candor on constitutional issues.
When Roberts was found to have written sharp things about constitutional issues as a lawyer in the White House, the Justice Department or in private practice, he was always able to demur that the views he had expressed in each of those capacities might not be his own, but rather his client's.
Miers' record is so free of any clear and candid expression on issues of constitutional law that the nation is left debating her church membership, her actions as president of the State Bar of Texas, her political contributions and a questionnaire she filled out for Texans United for Life (albeit with perfect pro-life answers) as a Dallas City Council candidate in 1989.
Bush, it must be assumed, has done a pre-emptive Borking of his own Supreme Court nominees.
The traditional Borking, which was tried on several of President Bush's own circuit-court nominees, proceeded like this:
1) A Republican president nominated to a federal appellate court someone who had made public statements or issued opinions that indicated he or she was likely to take a strict constructionist approach to the law and the Constitution.
2) These statements or opinions were unearthed by Senate Democrats and liberal interest groups, and publicized by their allies in the liberal media.
3) The Democrats decry the statements and/or opinions as evidence the nominee is "out of the mainstream" or an "extremist."
If this did not produce the votes needed to stop the nominee, character assassination was employed. When that did not work on President Bush's appellate court nominees during the president's first term, the Democrats resorted to filibustering.
They knew, and the Republicans knew, that conservatives were one move away from finally breaking the cycle of Borking. President Bush would nominate to the Supreme Court an unabashed strict constructionist with a record to prove it. If the Democrats took the Borking process on that nominee all the way to a filibuster, the Republican Senate majority would change Senate rules and end the filibuster of judicial nominees.
But Bush blinked -- twice -- and picked nominees he thought would provide the Democrats with no material for an attempted Borking.
That means, among other things, that unless Harriet Miers surprises the nation by going into a Republican-controlled Judiciary Committee and speaking with a candor that hasn't been heard there since Robert Bork testified before a Democrat-controlled committee in 1987, young strict-constructionist lawyers around the country will understandably draw the conclusion that if they ever publicly say or write what they honestly think about great constitutional controversies, they can forget about serving on our nation's highest court.
Yea, but youre a traitor if you don't go along with rubber stamping a Zelig-like nobody with no written opinions about anything substantial, to the SCOTUS. Yea, youre some kind of idealogue fanatic, is what you are. Shame on you.
Agreed. And even if Miers' VOTES on the Court (assuming she is confirmed) are 100% to my liking, still this pick represents a missed opportunity to have instead nominated a person who, in reaching similar votes, would *write well* and persuade others. Miers is no dummy, but she's no wordsmith.
Oh really? Guess they have not bothered to read what she said about the 2nd Amendments. She has taken a clear cut position on the 2nd Amendment as a PERSONAL right, not a collective right. Bork wrote that he thought the 2nd was a COLLECTIVE right like almost all the Gun Control crowd claims it is. So Guess in this case she out Borks Bork but then the facts have never been the issue with the Hate Harriet Always crowd now has it?
What the Democrats are doing with regard to Roe v. Wade constitutes a religious test by any reasonable standard. Not a test of the nominee's religion, per se; but rather a test as to whether the nominee will adhere to the socialist religion in which abortion and unlimited government authority are sacraments.
Whoops! You're now officially "Jackal Chow" here, Terence Jeffrey. You're going to get "Frum'ed" like Bork got "Bork'ed."
"They knew, and the Republicans knew, that conservatives were one move away from finally breaking the cycle of Borking. President Bush would nominate to the Supreme Court an unabashed strict constructionist with a record to prove it. If the Democrats took the Borking process on that nominee all the way to a filibuster, the Republican Senate majority would change Senate rules and end the filibuster of judicial nominees." Bahahahahahahahahahahahahahahahahahaha. Bahahahahahahahahahahahahahahahahahaha. Giggle. Bahahahahahahahahahahahahahahahahahaah. Yea, right. If you think that the liberals and the RINOs weren't working together to prevent the end of the filibuster on judicial nominees, then why didn't they call the vote. Why did they play political posturing games and make hollow threats for weeks and then follow with a compromise that was obviously not a compromise but a capitulation by what was supposed to be the majority. "But Bush blinked -- twice -- and picked nominees he thought would provide the Democrats with no material for an attempted Borking." Bush didn't blink. His eyes are wide open and he sees the Senate for what it is. While the Senators with a 'R' next to their names are in the majority in the Senate, there is not majority support in the Senate for a constitutionalist judicial nominee on the Supreme Court. The Senate is the major leagues for political elitists. These are not people who want power returned to the states and to the people as the Constitution dictates.
While I don't know Bork's position on the 2d amendment, and am certainly pleased at Miers' stance on the matter, that stance isn't enough to persuade me that this was a wise choice. She's dead right, but it's one issue. Besides, plenty of redoubtable conservative scholars and judges have written wonderful, correct prose on this subject, and would have made better picks, IMO. Alex Kozinski of the 9th Circus comes to mind. Wow, he wrote a brilliant dissent on that topic in the last couple of years ... ah, but there I go. Daydreaming.
I think you nailed it. We need at least 5 more Conservatives in the Senate. With the current set of RINOs we have it'll be almost impossible to appoint a conservative to the Supreme Court.
"... rubber stamping a Zelig-like nobody with no written opinions about anything substantial...."
Let me say this again: We had a paper trail on Souter, Stevens and O'Connor. A lot of good it did us. What say ye now?
No once claimed that Souter was an "originalist". Also, we didnt pour through a candidate's background like we do now, given the elevated importance of the court nowadays due to all those recently discovered penumbras, etc.
Nowadays, Souter's background would draw much attention and concern. We are a different country now than we were 15 yrs ago.
While people who rise to the court should not be bound by things they said previously, since arguments and facts may be brought before them that they'd not previously heard or considered, the notion that someone with opinions on a matter can't be a fair judge(*) is preposterous.
(*)Unless the opinions are liberal, of course
How has the judicial selection process become so absurd? Is it a recent phenomenon?
Despite the fact that his party now enjoys a 55-to-45 majority in the Senate, President Bush seems to have taken this message to heart.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.