Why Roast Bork?

Judge Robert Bork has not sought my counsel for his confirmation battle with the Senate. I’m not surprised—I have a less than enviable track record when it comes to such matters.

In 1970, President Nixon nominated Florida Judge G. Harold Carswell to the high court. I was assigned to help get him through the Senate. My first task was to persuade an influential and wavering senator, William Saxbe. After much study I became convinced that opposition senators were misreading the Constitution’s “advice and consent” clause, which its framers intended merely as a check on character and moral fitness of Court nominees.

So I prepared a draft letter to Saxbe. “What is centrally at issue in this nomination,” I wrote, “is the constitutional responsibility of the President to appoint members of the Court—and whether this responsibility can be frustrated by those who wish to substitute their own philosophy or … subjective judgment for that of the one person entrusted by the Constitution with the power of appointment.”

My letter was not particularly diplomatic; I knew it would be watered down as it passed through channels. Instead, it somehow went straight to the President’s desk. Nixon loved it, signed it, and had it delivered.

Saxbe hit the roof. Senators, it seems, do not enjoy having their prerogatives questioned. Carswell’s opponents waved copies of my letter on the Senate floor, angrily denouncing both Nixon and Carswell. Then Sen. Roman Hruska nailed Carswell’s coffin closed with his memorable defense to charges that Carswell was a “mediocre judge” with an “undistinguished record.”

“Even if he were mediocre,” roared Hruska, “there are a lot of mediocre judges and people and lawyers, and they are entitled to a little representation, aren’t they?”

Indeed.

Karl Marx once wrote, “Historical phenomena always happen twice—the first time as tragedy, the second as farce.” But Marx, as usual, had things backward. What was farce in 1970 now threatens as tragedy, as it seems that Judge Robert Bork’s nomination may well be imperiled on issues reminiscent of Carswell’s abortive nomination.

This is not due to the question of competence, of course. Even Bork’s detractors concede he is one of this generation’s great legal minds. No, the reason the Bork nomination has stirred the greatest controversy since Carswell is that his vote would alter the ideological balance of the Court.

It is his outspoken opposition to Roe v. Wade that has inflamed his opponents. Sen. Edward Kennedy has accused Bork of wanting an America “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids.…” Perhaps the senator should cut down on his caffeine—he threatened to make Joe McCarthy, by comparison, look like a paragon of rhetorical restraint.

Others have chosen loftier ground. Senate Judiciary Committee Chairman Joseph Biden, who a year ago said he would support Bork, had a sudden change of heart after announcing his presidential candidacy. “The Constitution,” he now argues, “says the President has the right to choose whomever he wishes. Conversely, it also indicates that the Senate has equally as much right to insist on ideological purity as the President does.”

While the Bork nomination appears to hang on ideology, Biden’s statement about the Senate’s “right” exposes the deeper issue. Unpopular though my views were 17 years ago, I am convinced now, as I was then, that this type of Senate power play is a threat to both the constitutional balance of powers and a politically independent judiciary.

The separation and balance of powers is the most direct Christian contribution to constitutional order. Government is ordained by God to preserve order and maintain justice, so it must have authority to act. Yet since men are essentially sinful and power is essentially corrupting, the authority granted each branch must be balanced in restraint against the others.

This balance, particularly as it relates to the appointment of Supreme Court justices, was carefully deliberated by the founders. Alexander Hamilton wrote in Federalist Number 76, “… the President ought solely to have been authorized to make appointments.… The person ultimately appointed must be the object of his preference.” The concurrence of the Senate was to act as “a … check upon the spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.” Hamilton concluded that the President’s choice should be accepted “where there were not special and strong reasons for the refusal.”

Thus the constitutional framers intended that the President appoint Supreme Court justices and the Senate review those appointments—but only to curb unjustified favoritism, not to determine “ideological purity.” If the Senate attempts to substitute its judgment, the constitutional balance is in jeopardy and the constitutional authority of the President impaired.

A Senate seeking to control ideology also threatens the political independence of the judicial branch. Judge Bork’s confirmation fight has taken on all the trappings of the political campaign—a media blitz, political speeches, million-dollar budgets.

The precedent is dangerous. Judges who hope to serve on the high court in the future would, in effect, run for office. Confirmation would depend on past decisions tailored for public consumption. Blind justice would be tempted to keep one eye open to look at the polls—precisely what the founders intended to prevent by giving appointment authority to the President.

The great irony of the Bork confirmation battle is that his antagonists, many of them self-proclaimed civil libertarians, may in their zeal be undermining the independent judiciary, the principal bulwark for protecting the weak, the minorities, and the defenseless.

The arguments raised in the Saxbe letter are just as crucial today as they were in 1970—or 1787. For the outcome of Bork’s nomination will determine not just the fate of Roe v. Wade, important though that is, but the fate of some of the most fundamental guarantees of the democratic liberty designed by the framers of the Constitution.

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