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Happy Anniversary!

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Via Roy, I see that conservatives are whining about the great day 20 years ago on which arch-reactionary Robert Bork was justly rejected by the Senate. First if all, it’s worth repeating that in this case the Senate functioned as it should, focusing on constitutional philosophy rather than trivial details, and that attempts to turn “Borking” into a pejorative notwithstanding, it’s ridiculous to argue that the President can consider ideology in nominations but the Senate cannot consider in in confirmation.

In addition, for the occasion it’s worth once again excerpting Bruce Ackerman’s devastating review of Bork’s shoddy, transparently outcome-orietnted attempt to defend his “originalism” in The Tempting of America:

Bork has succumbed to his own temptation. Proclaiming his fidelity to history, his constitutional vision is radically ahistorical. Pronouncing an anathema on value relativism, his jurisprudence brings skepticism to new heights. Insisting on the sharpest possible line between law and politics, his bitter concluding section transforms a legal treatise into a Red-baiting n3 political tract. Tempting reveals that Bork’s ordeal has transformed him into a human type that I, at least, had previously encountered only in Dostoyevsky novels. Mutatis mutandis, he is America’s Grand Inquisitor — grimly excommunicating heretics in the name of a Cause he has inwardly betrayed.

[…]

The historical vacuum at the core of Bork’s orthodoxy may seem surprising, since the man spent much of his life as a professor at Yale and had the time to engage in the disciplined historical reflection that his orthodoxy demands. The mystery dissolves when one recalls that Bork’s principal academic specialty was antitrust, not constitutional law. He did not win national leadership in this field by dint of historical research, but by championing the Chicago School of Economics’ notably ahistorical and theory-laden approach to antitrust. Few readers of Bork’s major book, The Antitrust Paradox, would guess that its author would next try to make a name for himself by championing the use of historical methods against the seductions of abstract theory. Indeed, one question left unresolved in Tempting is the extent to which Bork himself is aware of the tension between the ostentatiously theoretical methods of Paradox and the putatively historical concerns of Tempting.

Particularly telling is Bork’s remarkable dismissal of the Ninth Amendment, and its obvious implications for his jurisprudence:

Perhaps we should be grateful, then, that Bork tries to decipher the Ninth Amendment without an independent examination of extrinsic sources. Sticking to the text, he reports that it “states simply, if enigmatically, that ‘[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'”

The puzzle here is why Bork should find the text “enigmatic.” It seems, almost preternaturally, to be written with him in mind. What Bork is up to is precisely to use “the enumeration in the Constitution, of certain rights” to “disparage” the idea that there are other constitutional rights of fundamental importance. I especially admire the Framers’ choice of the word “disparage.” I can think of no better word to describe Bork’s general tone. Nonetheless, Bork finds the text enigmatic and yearns for greater clarity…

[…]

It is, of course, an old lawyer’s trick to create uncertainty by writing hypothetical texts that, in the writer’s mind, do a better job than the Framers’. Bork, however, does not seem to recognize that what the Framers wrote is stronger, not weaker, than the texts he considers as replacements. His hypothetical “clarifications” would narrowly address the courts and explain to them that they should not “disparage” unenumerated rights. In contrast, the Ninth Amendment speaks to all interpreters of the Constitution, presidents no less than courts, citizens no less than legislators, and expressly cautions all of them against committing the interpretive blunder that Bork would impose in the name of the Framers.

Bork’s jurisprudence in fact had a great deal to do with reaching conservative policy outcomes and very little to do with “originalism.” From the right, Glenn Reynolds makes a similar point.

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  • SKapusniak

    Ummm, look I’m just a dumb ignorant Englishman who doubtless doesn’t understand these things, but isn’t this Bork fellow the guy who during the Saturday Night Massacre *fired the Special Prosecuter at Nixon’s bidding, because he was about to blow the lid off the coverup* and then *conspicuously failed to resign over it*?
    Thereby revealing by his very actions, in the most public manner possible, at a time of *constitutional crisis* no less, everything anyone might ever need to know about his ‘constitutional philosophy’ when the chips are down.
    That the two guys above him resigned or were fired, rather than carry out the orders just throws the dishonour of his actions into sharp relief.
    Okay, I can see maybe if the guy had still fired the Prosecuter as ordered, and then immediately resigned over having been so ordered, that you might have an argument that he *hadn’t* dishonoured himself such that he should never ever be given any position of public trust ever again.
    But since that *wasn’t* the way he acted at the most important moment of his public life, why on earth should anyone pay any attention at all to his maunderings about law or constitution, whatever they might happen to be, when the elephant in the room of his actions is standing right there in front of us all?
    Sheesh!

  • Rob

    Scott,
    “From the right”? I’m sorry, but I was under the impression that Glenn Reynolds was a moderate centrist…

  • merlallen

    I like how he’s against “frivolous” lawsuits until he falls down some stairs.

  • Peter

    When uninformed wingnuts rant about Bork, I always ask them if they believe that they are “endowed by their creator with certain unalienable rights”. When they respond “Of course”, I explain that Bork’s writings on the 9th amendment basically call this mythology, and that we now know better. Sadly, not having read his writings, most of them refuse to believe it. Because accepting the truth would mean accepting that this hero and martyr of the extreme right was probably the least appropriate person ever to me nominated to the supreme court of a country with founding documents like ours. The man flat out doesn’t believe in them.

  • lemuel pitkin

    Wow, a smart, informed, even principled post from Instapundit. I had no idea such a thing was even possible. Did he used to actually do serious legal analysis? Or is this like the example people always use in physics glasses, where it is theoretically possible that all the atoms in a dropped glass might happen to move up instead of down?

  • Agreeing with Glenn Reynolds?
    That’s even scarier than Bean’s “Not A Good Year For The Climate” post just prior.

  • Walt

    Before September 11th made him outraged about Chappaquiddick, Reynolds used to write smart, informed, even principled posts frequently. It shows you how corrosive fear is to rational thought.

  • rea

    isn’t this Bork fellow the guy who during the Saturday Night Massacre *fired the Special Prosecuter at Nixon’s bidding, because he was about to blow the lid off the coverup* and then *conspicuously failed to resign over it*?
    His role is sometimes defended on the notion that sooner or later, some low-level person had to stay around, become the acting attorney general, and do the president’s bidding; otherwise the government would cease to function. I’m not sure he was quite low-level enough for that excuse to wash, however.
    The idea behind his analysis of the 9th Amendment is essentially fear of unconstrained judicial power–he doesn’t want the courts telling us what people’s rights are without explicit guidance from the founders, and he doesn’t care that the founders thought otherwise. The paradox of Borkian “Originalism” has always been that the founders weren’t Borkian Originalists.

  • Right–originalism sort of has that fundamental meta-problem that most of the framers were smart enough to realize that originalism was neither desirable nor workable.

  • I see that the anniversary’s being commemorated with Leslie Southwick’s confirmation.

  • SKapusniak, our judicial conservatives by and large use the Potter Stewart test for constitutionality.

  • Thanks for this Scott. The whole notion that Bork was somehow Borked makes me crazy.
    Our side won the debate on Bork during his confirmation; when Americans heard what he actually thought about such items as the right to make private decisions involving no aspect of state scrutiny or limitations on what kind of birth control to use, (see his attempt in the hearings to argue that Griswold was superfluous at the time of its deciding), they got turned off; then, too, there was the matter of his peculiar facial hair, and his dumbfounding arrogance.
    But we lost the battle to frame the implications of his defeat, and all manner of conservatives have been feasting on his carcass ever since. You even have someone like George Will excusing the rampant dishonesty displayed by conservative candidates at their confirmation hearings on the basis that they’ve been forced to do it by liberals’ success in thwarting Bork. “They make us lie and prevaricate, how else could we be confirmed?”
    What really gets me about Bork is the way, for years, he presented himself as a lawyer and scholar unmoved by results, interested only in constitutional process, whatever the outcome. In other words, he denied constantly that he had any specific political agenda, or that his reasoning was meant to insure a specific result.
    Then, as soon as he didn’t achieve confirmation, he sat down and wrote a book which revealed him to be a hard-core right-winger with a highly specific set of political goals. And of course being a “conservative,” he got away with it, at least in terms of the SCLM.
    Oh well, that was before blogs like this one. I do take some comfort in that thought. So, again thanks.

  • Mark S.

    If I recall correctly, Breyer and Ginsburg had no trouble telling the Senate their views on Roe. It is only with conservative candidates that no mention can be made about how they would vote in any hypothetical case.

  • If I recall correctly, Breyer and Ginsburg had no trouble telling the Senate their views on Roe. It is only with conservative candidates that no mention can be made about how they would vote in any hypothetical case.
    Well, maybe that’s because Republican senators believe that qualified Supreme Court nominees ought to be confirmed, even if a Democratic president nominates them, while the Democratic party is basically the party of abortion, with every nomination turning solely on that issue as far as they’re concerned.

  • Matt Weiner

    David, do you know the slightest thing about judicial appointments under Clinton? The first goddamn thing?
    Do you know that Clinton consulted with Orrin Hatch before nominating Breyer and Ginsburg? That Hatch suggested them after shooting down Bruce Babbitt — a qualified candidate who the Republicans rejected because of ideology?
    Do you know that the Republicans engaged in unprecedented obstruction of lower-court nominees under Clinton? That they blatantly changed their policies in order to allow Clinton’s nominees to be obstructed and Bush’s to be confirmed?
    Please, face reality a little bit.

  • aimai

    “David do you know the slightest…”
    No. This has been another edition of simple answers to simple questions.
    aimai

  • Hogan

    Remind me how many Democrats voted against Scalia’s confirmation? Oh, right, NOT A GODDAMN ONE.

  • Remind me how many Democrats voted against Scalia’s confirmation? Oh, right, NOT A GODDAMN ONE.
    Right. And then Bork’s nomination, and ever since then, every GOP nomination has gotten more and more vicious reaction from Democrats. Back in the 1980s, it was still possible to be a pro-life Democrat, but the re-alignment of the parties is complete now. Do you remember NOW’s hysterical reaction to the David Souter nomination? Women were going to die if Souter was confirmed.
    David, do you know the slightest thing about judicial appointments under Clinton? The first goddamn thing?
    Yes, I know what Orrin Hatch wrote years later about the nominations. Even if one accepts his self-aggrandizing description of events, he doesn’t claim that he “shot down” Babbitt’s nomination — just that it would be disputed.
    But I don’t see why you think this supports your argument, rather than mine. The point is, despite the fact that the GOP is pro-life, they did not threaten to filibuster every pro-choice nominee. They were willing to accept very liberal nominations like Breyer and Ginsburg, based on qualifications, even though they disagreed with these nominees. For Republicans, every judicial nomination doesn’t turn solely on Roe.

  • Matt Weiner

    I’ve been out of town so I missed your response, but did the Democrats filibuster (or even vote against in large numbers) every GOP nominee? No. Only Bork and Thomas. So
    ever since then, every GOP nomination has gotten more and more vicious reaction from Democrats
    is just a lie.
    And is there any reason to cast doubt on Hatch’s version of events, other than that it’s inconvenient for you?
    Also, nice complete failure to respond to the point about blue slips.

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