Bork: 'Brilliant' Roberts the Best Conservatives Will Get

CNS News ^ | 9/7/05 | Nathan Burchfiel

[Ol' Sparky]

Bork: 'Brilliant' Roberts the Best Conservatives Will Get

By Nathan Burchfiel

CNSNews.com Correspondent

September 07, 2005

(CNSNews.com) - One-time Supreme Court nominee Robert Bork Tuesday lashed out at the high court and the U.S. Senate for politicizing the judiciary and offered little hope to conservatives hoping to see Roe vs. Wade, the 1973 ruling that legalized abortion, overturned.

Bork said the possibility is "virtually nil" that Roe vs. Wade will be overturned in the next 10 years, even with John Roberts presiding as chief justice and a more conservative jurist replacing Sandra Day O'Connor. "I simply do not know if [Roberts] would vote to overturn constitutional mistakes of the past," Bork said.

Bork was nominated by President Ronald Reagan in 1987 for a seat on the Supreme Court, but came under heavy political attack from Democrats, especially Massachusetts Sen. Ted Kennedy, and was ultimately rejected by the Senate 58 to 42. The campaign to ruin Bork's nomination eventually became a prototype for the political Left, resulting in the judge's name being used as a verb.

A political or judicial nominee who had been "borked" was someone who had been subjected to a scathing attack by special interest groups and many in the establishment media. Tuesday, Bork joked about having his own verb. "I don't mind it," he said. "It's a kind of immortality."

But Bork was less understanding when it came to analyzing the behavior of the Supreme Court. The high court, Bork said, "has made itself the most important branch of government. Today's hearings are political circuses and there may be no going back," he told his audience at the National Press Club in Washington, D.C.

Roberts, President Bush's choice to replace the late William Rehnquist as chief justice of the Supreme Court, is well prepared for the post, Bork said. While praising Roberts for his "brilliant mind," Bork said he has "never heard [Roberts] say anything about judicial philosophy."

And that silence about judicial philosophy is the best decision Roberts could have made, Bork said, because it limits the political attacks against him. Bork's own outspoken judicial philosophy gave his political enemies many opportunities with which to attack him in 1987 and helped doom his nomination.

Speaking from that experience, Bork said potential Supreme Court nominees should never write or say anything about the court and never commit their vote on any issue in a Senate hearing.

"Senators now demand that nominees state positions," Bork said, "in an effort to make them state campaign promises." But he said the judicial branch shouldn't be politicized. The only way to fix the problem, he said, is to nominate and confirm judges who "will abide by the Constitutional principles" of the founding fathers.

Bork's political philosophy is characterized as constitutional originalism. He believes the Constitution should be interpreted "according to the principles the founders believed themselves to be enacting," not the way judges think the Constitution should work.

He added that conservatives should be happy with Roberts' nomination, in spite of the fact that the Bush nominee has not stated a position on hot button issues like abortion, affirmative action and homosexual marriage. "If they insist on a nominee who makes a campaign promise to them ... maybe he should not be confirmed," Bork said.

"They're not going to get any better nominees through," he added. However, Bork concluded that it would be "politically attractive" for the president to nominate a woman, possibly a minority, to replace retiring Justice Sandra Day O'Connor.

Roberts was originally nominated to replace O'Connor, but President Bush turned to Roberts for the position of chief justice following Rehnquist's death on Saturday. O'Connor will remain in her position as associate justice until a replacement is confirmed.

Bork suggested two justices from the U.S. Circuit Court of Appeals for the District of Columbia -- Judge Raymond Randolph and Judge Douglas Ginsberg. The latter was originally chosen by President Reagan to replace Bork as the nominee to the Supreme Court in 1987, but Ginsberg withdrew himself from consideration when it was revealed that he had used marijuana in the 1960s and 1970s.

[johnb838]

I'm surprised you thought he'd fight that battle three times when he only needed to fight it twice, John

[johnb838]

It is self-evident that the appointment of Roberts will do nothing to "change the direction of the court." He is like the man he is replacing.

I'll settle for "Protecting the Rehnquist Legacy" on this one. But it set's up the stomach churning speculation all over again.

Wish list: J.R. Brown.

Dread List: Joy Clement (Landrieu Pal)

[Defiant]

I'm not as pessimistic as Bork. If Bush gets to replace one of the 4 liberals on the court, he can get to 5-4 on social issues. The court may prefer to be at least 6-3 on major cases, and so it wouldn't hurt to have another vote, but it is not necessary as a mathematical matter.

I also think that Bush can get his conservative nominees through in spite of Dem filibusters, but he needs to get tougher about it. They need to break the filibuster once and for all, and if they don't, then Bush needs to find creative ways of putting the squeeze on Congress. One thing I would do would be to give Bork a recess appointment and tell Congress that it's because they need to fill the vacancy, but that as soon as his real nominee is confirmed (hopefully, Janice Rogers Brown), Bork will resign. That would have them in a tizzy.

The other thing we need to do is develop and publicize a coherent doctrine of when past judicial mistakes may be overturned, when stare decisis should be ignored. Libs certainly have no compunctions about stare decisis, and if you can come up with a doctrine with a pithy name and explain it to the people, it will prepare the way for the return of constitutional rule by the overturning of a lot of liberal landmark rulings of the past 70 years.

[ZULU]

A few weeks ago, Bork, on a radio interview expressed reservations about Roberts but again said that Roberts lack of opinion of the Constitutional role of Courts was a good defense against anticipated liberal attacks.

But Conservatives and Moderate Republicans should make it very clear that Gonzales is totally unacceptable as a Supreme Court nominee to replace O'Connor and they expect a candidate with solid conservative credentials, even if George DOES have to have a floor fight over it.

This was a key issue in getting George Bush II re-elected - a conservative judiciary.

[zendari]

What are your top 3 choices for the Supreme Court?

[Congressman Billybob]

My estimate, which was apparently wrong, was that Bush wanted Scalia, and could get the votes for Scalia for Chief. If those two points were true, then there would have been two battles -- replace O'Connor and replace Scalia.

The fact that Chief Justice Rehnquist died just a month before the beginning of the 2005 Term may have affected the Administration's thinking. If Roberts had remained in line to replace O'Connor, the Court would have ascended its bench on 3 October with eight Justices, and with Stevens as the Acting Chief Justice.

I am aware of only one 4-4 tie in a Supreme Court decision (concerned a Jack Benny movie, in the 40s), but I do know the problems such a result cause. Also, the idea of Stevens as Chief Justice (even acting) gives me rectal contractions. p>Possibly, those last minute facts altered Bush's judgment. We won't know for sure until about 60 years from now with the private memos in his Presidential Library are opened for scholars. LOL.

Congressman Billybob

Latest column: "The Constitution is Finished: Not the US One, the Atlanta One"

[Always Right]

I don't understand your reaction at all and I disagree that Bush gave up "huge ground".

Because, a Roberts for O'Conner was a significant shift to the right for the court and the Dems failed to stop it. By making it a Roberts for Rehnquist, it is a neutral move. It may not like seem significant, but wait for the spin to begin. It will be a huge defeat in the area of spin. Bush could have picked a 2nd Conservative Justice with solid conservative credentials and sold it as a Rehnquist replacement. Bush lost that luxery and is now in for a huge fight on his next nomination. Dumb move, IMHO.

[kidd]

Bush will probably wait until Roberts is confirmed to nominate a new replacement for O'Connor.

The whole thing falls apart if he doesn't. I suspect Rehnquist stuck it out until the very end just so Bush wouldn't have to provide a 'balanced package' of two nominees that would be palitable to the MSM. With Rehnquist's death before Roberts confirmation, this was Bush's only choice.

[zendari]

Why didn't Rehnquist resign months ago?

[kidd]

The official line is that Rehnquist needed to work to keep his mind off of the cancer treatments.

I believe he didn't resign because it would have forced Bush to have two nominees under consideration at the same time. In that case, Bush would have been pressured to provide a liberal and a conservative nominee. This pressure would have come from democrats, the MSM and media-whore RINOs like McCain. Rehnquist despised the MSM as much as any Freeper and was undoubtedly well aware of how they would react to having two nominees under consideration at the same time.

[Rippin]

It will be a huge defeat in the area of spin. Bush could have picked a 2nd Conservative Justice with solid conservative credentials and sold it as a Rehnquist replacement. Bush lost that luxery and is now in for a huge fight on his next nomination. Dumb move, IMHO.

Exactly my point above. The response above was that he will cover that base by choosing a woman. I'm not convinced but I'm usually wrong anyway.

[zendari]

That wouldn't have been a problem if he resigned and got his replacement confirmed before Oconner resigned in July.

[ASA Vet]

We don't even know Roberts holds the same views as Rehnquist

I'd like to know where Roberts stands on 2A issues. I've seen nothing about that anywhere.

[Southack]

"there is a very real possibility that court will actually move to the left"

Grade school nonsense.

Judge Roberts is Chief Justice Rehnquist's own man...a man of President Reagan and President Bush.

Likewise, replacing O'Connor with **anyone** will fail to move the Court to the Left, and an Owen, Estrada, Olsen, Pryor, or Judge Janice Rogers Brown would plant the Court firmly on the Right for decades to come.

Moreover, Justice Stevens is in his 90's and Justice Ginsberg is ill. President Bush could easily be making a total of 4 Supreme court placements in the next 3 years...all of whom will be further to the Right than Ginsberg, Stevens, and O'Connor.

So snap out of your needless worrying and whining about the Court moving to the Left. It's simply not in the cards.

[BillM75]

Janice Rogers Brown, indeed, twigs. From your lips to God's ear.

BTW, I can't see how anyone thought Scalia'd get the Chief job. He's 69, and it would've necessitated three sets of hearings, as well as a replacement within 10-15 years.

[Rodr88]

Isn't that the truth. I can hear the democrats yelling and screaming over that one. Imagine how that is going to look, the party of "civil rights" blocking the nomination of a black woman to the Supreme Court. I would love to see her get the nod.

[Ol' Sparky]

I do know that Roberts donated his time to gay rights activists. I also know that there is no evidence that he supports Roe vs. Wade being overturned. He is a maybe, not a sure thing. And, he is now replacing one of the three originalists on the court.

Further, we'll be asked to accept yet another maybe to replace O'Connor.

It's very possible the court will remain unchanged after both appointments or made or even move to the left with Roberts not being as conservative as Rehnquist and the next nominee being no better than O'Connor.

There is no good reason for one of these two appointments not to be a verifiable originalist in the Scalia mold. Yet, conservatives continue to let Bush and the Republicans do what is politically expedient rather than what they promised to do.

[demkicker]

I still don't see it that way. Granted, the dems can't manage to damage or stop the Roberts nomination regardless of who he is replacing. The inevitable "fight" was and is going to take place on the 2nd nomination anyway, so it doesn't really matter.

[Ol' Sparky]

Judge Roberts is Chief Justice Rehnquist's own man...a man of President Reagan and President Bush

Did Rehnquist and Reagan every donate their time to assist gay rights activists?

There is no proof that Roberts would vote to overturn Roe vs. Wade. Many think he would consider it settled law.

You have no idea whether Roberts will be as conservative as Rehnquist. No one can know.

It's highly unlike that Brown, Owens, Estrada, Edith Hollan Jones or any verifiable originalist will be named nominated now that the new nominee is going to take O'Connor's seat. It's like to be someone like Edith Clement, someone with no paper trail that will be easy to confirm.

We're going to likely end up two maybes to replace one of the three conservative members of the court and moderate liberal. That quite possibly will result in the court moving to the left or, at best, remaining the same.

[demkicker]

BTW, I can't see how anyone thought Scalia'd get the Chief job. He's 69, and it would've necessitated three sets of hearings, as well as a replacement within 10-15 years.

Thank you! Roberts is the best choice for obvious reasons, the best one being that it's driving the dems absolutely nuts. Bush does owe his base a known conservative nominee for SDO. Clearly, Janice Rogers Brown is the woman of the hour and would be a brilliant choice, if she's game for the scrutiny. Let's pray!