Skip to comments.Kristol: Reversing the Bork Defeat
Posted on 07/01/2005 7:30:45 PM PDT by RWR8189
With a Republican Senate, President Bush has the chance to succeed where Reagan failed by getting a conservative constitutionalist confirmed to the Supreme Court.
ON OCTOBER 23, 1987--a day that lives in conservative infamy--Robert Bork's nomination to the Supreme Court was rejected by a Democratic Senate. Now, 18 years later, George W. Bush has the chance to reverse this defeat, and to begin to fulfill what has always been one of the core themes of modern American conservatism: the relinking of constitutional law and constitutional jurisprudence to the Constitution.
The restoration of constitutional government has been the one area in which modern conservatism has had the least success. From Ronald Reagan to George W. Bush, conservative economic policies have been (more or less) pursued, and, when pursued, have been vindicated. From Ronald Reagan to George W. Bush, conservative foreign policies based on American strength and American principles have been--when pursued--remarkably successful. One might even say that, in both economics and foreign policy, the degree of conservative success has been far greater than anyone would have imagined in 1980.
But in the area of constitutionalism, conservative goals have been thwarted, and the key moment of failure, from which conservative constitutionalism has never recovered, was the Bork defeat in 1987. For the last 18 years constitutional jurisprudence has continued to drift away from a sound constitutionalism based on the written Constitution and a proper deference to popular self-government in many areas of public life. Bork's defeat was both a cause and a symbol of this continued downward drift. Now, with one of the two swing votes on the Supreme Court stepping down, George W. Bush has a chance to begin to make constitutional history, as he is certainly attempting to do in foreign policy and, to a lesser degree, in economic policy.
There are two pieces of good news to keep in mind as President Bush ponders his choice. The first is that, by contrast with the situation in 1987, the Senate has a Republican majority. The second is that President Bush can choose from among many, many well-qualified conservative constitutionalists. Although President Bush is understandably fond of and loyal to his attorney general Alberto Gonzales, it's simply a fact that Gonzales does not have the stature of several other possible candidates. I now believe that, though tempted, President Bush will leave his attorney general in his current office.
The president has the luxury of choosing among such candidates as Michael McConnell, probably the leading constitutional thinker of his generation, now serving on the 10th Circuit; J. Michael Luttig, who has served with great distinction for 14 years on the 4th Circuit; the remarkable Janice Rogers Brown, with almost a decade on the California Supreme Court and a recent confirmation to the D.C. Circuit Court of Appeals; as well as other federal and state supreme court judges--some of whom happen to be women (if that matters), and all of whom have strong credentials.
Most of the Democrats will fight any strong candidate. It won't matter if that candidate doesn't have a paper trail, because any nominee will have to make his or her general manner of constitutional thinking clear to the Senate--which thinking will almost inevitably provoke opposition from the left. But such opposition, however vociferous the rhetoric, will not be unstoppable. Indeed, looking at the current Senate, I do not believe that there are 40 Democratic votes to sustain a filibuster against an objectively well -qualified conservative nominee. And in any case a filibuster would be very difficult for the Democrats to defend.
George W. Bush's has been a Reaganite presidency in the areas of foreign and economic policy. He has impressively adjusted Reaganite principles to deal with today's challenges. Now he has the chance to once again follow Reagan's lead by nominating a jurist as impressive as Robert Bork for the Supreme Court. And now he has the chance to surpass Reagan--by getting that nominee confirmed.
William Kristol is the editor of The Weekly Standard.
And he was doing so well until he wrote this.
Even though I agree with his sentiments, I've lost respect for Kristol. Some head of the Neo-Con conspiracy he turned out to be.
Amen to that. He lost his guts somewhere this past year.
Kristol is making a judgment call, not an ideological one. We shall see. He may be right. I suspect he is, unless Brown (who won't be), or maybe Luttig is nominated. I also doubt there will be a filibuster.
He got that right!
Why do you doubt there will be a filibuster Torie.
I think there will, indeed, be a filibuster.
On the other hand, I think Bork screwed himself when he fired Independent Counsel Archibald Cox during the Saturday Night Massacre. What goes around, comes around.
Because it would not be sustained, if the names other than the names I mentioned are nominated, or the Nuke option would pop up. Smart conservative nominees respected for their mind and temperment who do not seem like loose cannons, are not going to be bounced in that way. That is my guess. I could be wrong.
So I say EDITH HOLLAN JONES now.
It's really very simple.
We'll have a filibuster unless:
1) Democrats in red states do not want this hung around their neck next election.
2) RINO's such as Lindsey and DeWine stop courting the elites and do the job their constituents expect of them by nuking the filibuster.
I tend to give the first one better odds. Political preservation can be a powerful motivator, though fear is being enforced from their leadership. The second option concerns bridging the RINO's arrogance, a little tougher to climb that ladder.
Brown or Luttig.
Hmmm...times have changed...Boyden Gray said that they never had 60 votes for Clarence Thomas...however a vacancy on SCOTUS is front page news, while a vacancy on a lower federal court is not. Eventually both sides of the aisle would eventually want the story off the front page -- interest groups would run out of money sliming nominees, no?
That would be nice >I met Judge Bork his beautiful wife and he is ready and fit.
Why not just nominate BORK again?
Is there a law against it?
Nuclear Option, here we come!
Probably not if the nomination is a middle-of-the-roader to very-slight-conservative. On the other hand, if it's a strict conservative constitutionalist, I would expect the Rats to fight to the last Republican standing...
I would be grateful to President Bush if he were to do so.
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