Gary McDowell: The anniversary of Robert Bork's failed nomination reminds us what's at stake in the coming election
[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.]
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....
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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....