Tuesday, October 23, 2007

Borking the Constitution

Today's the 20th anniversary of the U.S. Senate's rejection of Robert Bork as an associate justice of the Supreme Court. The failure to confirm Bork held enormous implications for the future of constitutional intrepretation, according to Gary McDowell in today's Wall Street Journal:

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.
Read the whole thing.

McDowell illustrates Bork's commitment to originalist restraint with his discussion of Roe v. Wade and Griswold v. Connecticut (the landmark cases at the forefront of an emerging "transcendental" jurisprudence of the left, which, McDowell suggests, has grown increasingly disconnected from historical interpretations of the constitutional groundings of liberty).