The War for the Constitution
The anniversary of Robert Bork's failed nomination reminds us what's at stake in the coming election.
BY GARY L. MCDOWELL
Tuesday, October 23, 2007 12:01 a.m. EDT
Twenty years ago today the United States Senate voted to reject President Reagan's nomination of Judge Robert H. Bork to the Supreme Court. The senators may have had every reason to believe that was the end of the story. However ugly it had been, however much time it had taken, Mr. Bork's defeat was only one more routine sacrifice to partisan politics. But time would prove wrong anyone who actually thought that. The battle over Mr. Bork was politically transformative, its constitutional lessons enduring.
To many at the time (and still today) it was inconceivable that a man of Mr. Bork's professional accomplishments and personal character could be found unacceptable for a seat on the Court. Warren Burger summed it up for many when he described Mr. Bork as simply the best qualified nominee in the former chief justice's own professional lifetime--a span of years that included the appointments of such judicial luminaries as Benjamin Cardozo, Hugo Black and Felix Frankfurter. Such praise was no empty exaggeration.
A former Yale law professor and U.S. Solicitor General, Mr. Bork was, at the time of his nomination, a judge on the United States Court of Appeals for the District of Columbia Circuit. When he was a circuit court judge, Mr. Bork's opinions not only were never overruled on appeal, but on several occasions his dissents were adopted by the Supreme Court as its majority view.
In an earlier day such an appointment would have been celebrated as adding breadth, depth and luster to the highest bench. Instead, the nominee faced a mauling by those who set out not only to destroy him personally but to discredit all that he stood for as a jurist.
It was immediately clear that the unprecedented vote of 58-42 against his confirmation reflected something far more historic and fundamental than an ordinary partisan standoff. The confrontation in fact had been one of the most cataclysmic and divisive events in American domestic politics during the second half of the 20th century. The reason was that Mr. Bork's opponents succeeded in making the fight over his nomination into a contest over the future of the Constitution.
The issue that united the judge's critics in their fiery, scorched-earth opposition was never his ability or reputation but rather his theory of judging. Mr. Bork's belief was that judges and justices in their interpretations of the Constitution must be bound to the original intentions of its framers. In his sober constitutional jurisprudence there was no room for any airy talk about a general right of privacy, allegedly unwritten constitutions, vague notions of unenumerated rights, or what the progressive Justice Black once derided as "any mysterious and uncertain natural law concept." For Mr. Bork, the framers said what they meant, and meant what they said.
Mr. Bork's approach had its roots in hundreds of years of common law history as well as in the political philosophy of those whose works serve as the foundation of American constitutionalism. Chief Justice John Marshall had summed up that received tradition when he proclaimed that recourse to a lawgiver's original intention is "the most sacred rule of interpretation." In Marshall's view, it is always "the great duty of a judge who construes an instrument . . . to find the intention of its makers." As with Marshall, so also with Mr. Bork.
At its deepest level, Mr. Bork's defeat was the result of the very public affirmation by the Senate of a dangerous theory of ideological judging that had been developing for quite some time. It was the idea of a so-called "living" Constitution, one that various scholars have said means there need be "no theoretical gulf between law and morality," and that ordinary judges are empowered to interpret the fundamental law in light of their own "fresh moral insight" in order to effect a judicially mandated "moral evolution" of the nation.
The aim of this new approach to judging that was used to pillory Mr. Bork was not a matter of mere metaphysical speculation. It was the concrete political reality of Roe v. Wade and its judicially created right to abortion--and behind that, Griswold v. Connecticut and its even more amorphous right to privacy. Mr. Bork's originalism denied the constitutional legitimacy of such contrived decisions and would have left such issues to be resolved by the people in their legislatures.
Thus, his nomination threatened not only all that had been gained by judicial fiat, such as abortion rights, but all that might be gained, such as constitutional protections for same-sex marriages. That was why, to his critics, he had to be stopped at all costs.
The price paid has proved high, indeed. The defeat heralded a fundamental transformation in the process surrounding judicial appointments and thereby radically politicized the public's view of the nature and extent of judicial power under the Constitution. Confirmation battles from Mr. Bork to Clarence Thomas to Samuel Alito have taken on the trappings of ordinary political campaigns, from instant polling to rallies and protests and attack ads. Sadly, the courts are no longer above the fray.
The Supreme Court has continued to give voice to the rhetoric of a morally evolving or living Constitution, along the way upholding Roe in 1992 and striking down state sodomy laws in 2003. Moreover, the Court has decreed that it is "invested with the authority to speak . . . before all others for [the people's] constitutional ideals."
And Judge Bork's replacement as a nominee, Justice Anthony Kennedy, has insisted that the concept of liberty has both "spatial" and "transcendent dimensions," the boundaries of which "are not susceptible of expression as a simple rule." Thus constitutional meaning, even for some Republican appointees, is no longer a matter of the framers' intention but only the judges' intuition.
Recalling Mr. Bork's experience serves to remind us of how precarious the judiciary's balance is at any given time, and how today's highly politicized process prevents even the most gifted and prominent jurists from expecting to be confirmed (or perhaps even desiring the chance to undergo the ordeal).
But more important, it is a reminder that presidents must be willing to undertake what they know will be a horrific fight in order to see the bench filled not with liberals or conservatives or partisans, but with constitutionalists.
In this sense, the Bork vote is not just a matter of quaint historical interest, but the first great battle in the contemporary war for the Constitution--a continuing war that must be won if true self-government is to prevail.
Time has shown that Mr. Bork's theory of constitutional interpretation remains very much alive; he was defeated but his central idea was never discredited. That theory of interpretation and its implicit belief in restrained judging should continue to guide anyone who believes that the inherent arbitrariness of government by judiciary is not the same thing as the rule of law.
Mr. McDowell, currently a recipient of a fellowship from the National Endowment for the Humanities, is a professor at the Jepson School of Leadership Studies at the University of Richmond.
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