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IT'S NOW OKAY TO SOUND LIKE BORK.
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by Cass R. Sunstein/
TNR Online
Post date: 01.21.06

Is Robert Bork having the last laugh? There is good reason to think so. Over the last months, the nation has witnessed something genuinely new--a kind of un-Borking of the confirmation process, produced by exceptionally shrewd leaders in the Republican Party.

When Bork was rejected by the Senate in 1987, it was because his opponents successfully portrayed him as holding extreme views that would endanger civil rights and liberties. It is true that Bork was the victim of an effective (and unfair) public relations campaign, featuring an influential attack ad narrated by Gregory Peck. But Bork also lost the battle of ideas. He argued that the Constitution should be interpreted to mean what it meant when it was originally ratified. Repudiating the modern right to privacy, Bork insisted that his own approach, based on the document's "original meaning," was neutral--not at all political, but a simple matter of fidelity to law. Spurred by Democrats on the Senate Judiciary Committee, the Senate rejected that claim, concluding in the process that Bork's approach to the Constitution was unacceptable. Republican politicians learned their lesson well, and subsequent Republican appointees pointedly failed to endorse Bork's approach.

The successful Republican script for confirmation included ungrudging acceptance of the right to privacy and an evolving Constitution. Anthony Kennedy set the tone, rejecting the original meaning argument and speaking enthusiastically of Justice John Marshall Harlan, a conservative who insisted that the proper understanding of the Constitution changes over time. David Souter spoke in similar terms. Clarence Thomas accepted the right of privacy and expressed agnosticism about Roe v. Wade, saying that he had never discussed it. Significantly, however, John Roberts did not follow the script set by his Republican predecessors. His overall message was much simpler: He would follow the law. At the same time, he announced, "I do not have an overarching judicial philosophy that I bring to every case." He explained, "I tend to look at the cases from the bottom up rather than the top down." Samuel Alito largely followed Roberts's script, but at key points he was much more specific. Asked about his general approach, he said, "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption." He also said that "it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution."

Although Alito offered various qualifications, this is Bork's view in a nutshell. Remarkably, Alito's statements to this effect have received essentially no public attention (with the honorable exception of this magazine). One reason may be that unlike Bork, Alito did not argue for disturbing results, such as the abolition of the privacy right. But the most important point is the development of a new script for confirmation--one that emphasizes fidelity to law, an idea that might well include favorable references to Bork's approach to the Constitution. This is a fundamental change, one that signals a huge victory by Republican politicians. To a remarkable extent, Republican leaders have convinced the nation that their goal is to ensure that judges follow the Constitution--and that Democratic politicians want judges to "add to the Constitution or subtract from the Constitution."

Of course this is a hopelessly inadequate statement of the difference between the two parties. Many Republican politicians want judges to adopt positions that fit less with the Constitution than with the current values of the Republican Party--by, for example, striking down affirmative action programs and campaign finance regulations, protecting commercial advertising, increasing presidential power, invalidating environmental regulations, and developing new safeguards for private property. But for the confirmation process, what seems to matter is not reality but how it is framed. That process has been successfully un-Borked. If President Bush is able to fill other vacancies on the Supreme Court, the right script is firmly in place. And if Democratic presidents are able to fill future vacancies, their nominees may well run into trouble, because it will be easy to characterize them as wanting to "add to the Constitution or subtract from the Constitution."

For the future of constitutional law, this shift will inevitably have significant consequences. History is written by the winners. The unanswered question is whether the new script will be history's as well.

Cass R. Sunstein is a contributing editor at TNR. He is the author of Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong For America (2005).
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