November 4, 2002
DISMANTLING THE AUTHOR:
Dismantling the law
(Robert H. Bork, November 2002, New Criterion)
A man who had been blind from birth would be most unfortunate if he suddenly gained sight while standing before distorting mirrors in a carnival funhouse. The version suddenly revealed to him-men and women with grotesquely bloated bodies, faces out of surrealist nightmares, people upside down-would make what he supposed to be reality appalling and terrifying. So it is with Martin Garbus's new book, Courting Disaster: The Supreme Court and the Unmaking of American Law. Should the book fall into the hands of anyone ignorant of the Court's constitutional jurisprudence, which is virtually all of the American public, he will be horrified to learn that extreme right-wing bigots, reactionaries, and toadies to malefactors of great wealth are increasing their control of the Supreme Court and most of the lower courts.
There are three difficulties with Mr. Garbus's argument. It proceeds from a wholly illegitimate view of how the justices should decide constitutional cases. It claims, in the face of all the evidence, that the Supreme Court majority is conservative, if not diabolically reactionary. And it flat out misrepresents what the Court is doing and what conservatives want it to do. The book would be greatly improved if these defects were removed, but then there would be no book left.
One supposes it's futile to wish that W would reappoint Judge Bork to the Supreme Court, but if you read this review you'll see why he scared the pants off the Left.
Posted by Orrin Judd at November 4, 2002 10:44 PM
And if you read "Slouching toward Gomorrah" you'll see why he scared the pants off the center. That didn't leave him with enough votes to get the job. And it is a shame because he has a great legal mind.
He scared the pants off of me when he carried water for
Nixon. I'd like associate justices to have a minimum ration of independence. Bork doesn't have it.
That's beneath you.
The AG and Assistant AG, as has been documented repeatedly, specifically asked him not to resign because someone had to run Justice.
Your comment implies that Bork's "Slouching Toward Gomorrah" (and his general thinking along those lines) scared the center away from giving him enough votes in the Senate to win confirmation. Of course, the book came out almost a full decade AFTER his nomination was defeated. (And his earlier American classic, "The Tempting of America," came out just a few years after his defeat as well.) BEFORE his nomination, he had written nothing so controversial (unless you bought the distortions of Ted Kennedy or Joe Biden) to warrant any real fear from those (even in the center) who actually believe that we are a nation of laws (bound by the Constitution) and not men.
Clearly Bork didn't get enough votes from the center (he lost 58-42), but that was more a result of the far Left's fear (and, again, resulting distortions of his record) that he would actually read the Constitution and federal statutes for what they fairly meant rather than what he or his companion eight old men and women believed they SHOULD say.
At the time I thought Judge Bork was a weak candidate because his anti-judicial-activist message didn't seem firmly constitutionally based. After all, shouldn't judges be active in enforcing constitutional rights such as the 2nd Amendment? Bork's arguments seemed a-constitutional. But since at the time I got them from secondary sources, perhaps I misunderstood him. His recent writings seem pretty sensible.
It seems that Borkings will be the standard Democratic response to conservative nominees now.
Many blog readers may too young to have seen the Bork hearings on CSPAN. This was CSPAN as it was before Lamb succumbed to the siren song of the left. When they had one camera and didn't do artistic shots of people facial expressions.
The hearings were a disgrace and painful to watch. Bork, a brilliant legal scholar and honorable man, was being baited by lowbrow sleazoids like Patrick Leahy, Ted Kennedy and Joe Biden among others. The good senators eyes glazed over as Bork struggled to answer complex legal questions in language they might be able to understand.
But those boobs are no-nothings, it was Lawrence Tribe (a real oil millionaire, Harvard professor and legal scholar in his own right) who lost all credibility and hope of a Supreme Court nomination for himself by actually lying about Bork's actions during the Nixon-Cox affair. Not even bubba had the nerve to nominate him.
Then there was the ADA, Norman Lear's group of lefties with their TV ads. One by Gregory Peck was so egrecious I won't permit his likeness in my house. If he appears on the TV, off it goes. Peck wasn't the only "star" to make anti-Bork commercials, but he was the one who told the biggest lies.
If Bush gets a Republican senate, I would like it if he nominates Bork again. Republicans would be in charge of the Judicial Committee this time and he would get a fair hearing. If anyone deserves to sit on the Supreme Court it is Robert Bork.
If I recall correctly, also on that stellar Judiciary committee were Howard Metzenbaum, who made his fortune via mob-controlled parking garages, Dennis DeConcini who was one of the Keating 5, and Howell Heflin who said he was voting against Bork because he was troubled by his video rentals (no, I'm serious).
DATE: 11/05/2002 08:13:00 AM
DATE: 11/05/2002 08:13:00 AM
OJ--I may be mistaken, but didn't they make an issue of Justice Thomas' video rentals, too?
That would really be something to see, W. renominating Bork. Back to reality -- any takers on who the next Justice might be? There have been some rumblings that the Chief may retire at the end of this Term whatever happens in the election today. Assume the Democrats retain control and assume WHR does step down. How moderate do you think W. would go?
Moderate doesn't matter so much as ethnicity. W very much wants to appoint a Hispanic, which means his own counsel, Mr. Gonzales, has a shot or Miguel Estrada.
Yes, well, Mr. Thomas was apparently not bashful about his enjoyment of pornography when he was a younger man.
If Bush does nothing else, except get Bork on the Supreme Court he would have done this country a great service. I better wake up.
They did indeed make that an issue, saying that Justice Thomas was obsessed with pornography.
Man, they can get ugly (without any hard proof, too).
Grant & OJ-
As long as we're dreaming:
Can you imagine what could have been had (1) Bork been confirmed; and (2) Bush 41 tapped an extremely able Solicitor General Kenneth Starr instead of stealth-candidate from O.J.'s neck of the woods, David Hackett Souter (before Starr had the political baggage of Monicagate)?
These things were, at one stage, not outside the bounds of possibility.
The Court today would be:
Chief Justice Rehnquist
A pretty good heart-of-the-batting-order if you ask me. Like the 1927 Yankees almost.
I actually think a smart, realistic choice for W. to replace the Chief, if he does retire, would be J. Harvie Wilkinson from the 4th Circuit. Judge Wilkinson has been Chief Judge for quite some time, is experienced enough but not too old (59, I believe), takes a great interest in the "adminstrative" judicial matters that a Chief Justice must undertake on a day-to-day basis, and has staked out sensible, consistent but not overly doctrinare positions on the Commerce Clause (see Broznkala v. Morrison, concurring opinion), campaign finance reform (see Beaumont v. FEC) and the like. He clerked for Justice Powell and, like his former boss, he would likely be somewhat more moderate than Justices Scalia or Thomas. But that's part of what would make him confirmable (and it might make his influence on the Court greater). And he seems to be a very affable person (which would also aid him in getting past the Committee).
I love the thought of Mr. Estrada being a Justice for loooooong time (he's only 40). I've heard that White House Counsel Gonzales is not particularly qualified.
You think Democrats are going to make a Latino nominee's qualifications an issue?
Wilkinson and I worked for the same organization shortly after he came out of U. of Virginia, where he was a boy-wonder political scientist. He was hired to write editorials for the biggest paper in Virginia.
I thought them undistinguished, but, hey, he was only about 23. The verdict of the rest of the professionals was: He doesn't know how to type!
Maybe he knows by now.
Lileks has some comments (in re: Mondale) about technophobes.
I read Wilkinson's dissertation, "From Bourbonism to Byrd." 400 pages and a jillion footnotes, all done without benefit of typewriter.
That was 35 years ago, and maybe things have changed, but pending clarification, I'd like to have an associate justice who lives in the 21st century.
I have not followed his judicial career at all.