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Bork: Last 50 Years of Supreme Court a Big Mess - Must Be Cleaned Up

Reported by Marie Therese - July 2, 2005

Last night, on the O'Reilly Factor, the top story was still missing teenager Natalee Holloway. After opening the show with a 5-minute rehash of stale information from Aruba, substitute host Tony Snow interviewed conservative Judge Robert Bork. Snow has a long history on the conservative circuit, including a few stints as a substitute for Rush Limbaugh. I've predicted for many months that Snow is the logical successor to O'Reilly in the event the Bloviating Billster is forced out at or resigns from FOX News.

The two men discussed the stunning announcement that Sandra Day O'Connor will resign. As you will recall, Bork's nomination in 1987 by Ronald Reagan was the first down-and-dirty Senate donnybrook over a Supreme Court nominee.

Back then conservative groups felt they were sandbagged by well-organized Democrats and have vowed they will not be caught unawares again. Reports say they have accumulated an $18 million war chest whose sole purpose is to blanket the airwaves, print media and internet with ads in support of whoever the President's nominee might be. Naturally, the Democrats and a wide variety of interested progressive groups are similarly poised to oppose Bush's choice, should he tap someone too far to the right.

Robert Bork is a leading architect of a cornerstone of the conservative agenda, i.e. as he has written:

"We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own."

This concept has given rise to to the now ubiquitous Republican catch-phrase "activist judge."

According to CNN's website, Bork had this to say about Justice O'Connor:

"They call her the swing vote. That's true. But that means that she didn't have any reaffirmed judicial philosophy. On the crucial cultural questions, she lined up with the liberal side on abortion, affirmative action, homosexual normalization and so forth."

In the course of the segment Snow and Bork labeled the last 50 years of Supreme Court decisions "a big mess" and claimed that it needed to be "cleaned up." In the past 50 years the Supreme Court has ruled on some monumentally important issues - the Miranda decision, Roe v. Wade, affirmative action, desegregation, eminent domain, extending lawsuit immunity to states, internet free speech, among others.

Perhaps Snow and Bork are suggesting that Brown vs. Board of Education should be overturned because it represents judicial activism. Maybe they'd like to return to pre-Miranda days when the police could use "coerced interrogation" to solve their cases. We all know they want to gut Roe v Wade and take us back to a world where rich women can get any kind of surgery their little hearts desire while poor women end up dead from botched abortion or raising unwanted children who. more often than not, go on to lives of promiscuity and/or crime.

Who decides what the term "recent' means? In the Snow-Bork world, how far back can the Justices go to overturn precedent? Correlatively, who gets to pick and choose which precedents are to be overturned? Exactly which Supreme Court decisions are to be "cleaned up"?

Not being a lawyer, I can only surmise that the principle of "stare decisis" (honoring precedent) evolved to counterbalance the judicial chaos that would result if each new judge or court could arbitrarily ignore all past decisions and legislate as if they lived in a vacuum. As a lay person, I would prefer to operate in a world governed by judicial continuity rather than one ruled by judicial whim.

Bork appears to be setting the stage for a philosophy of jurisprudence that would allow any court anywhere to decide anything based on evidence that exists only contemporaneously without regard for the past. While this may look good on paper and garner him large fees on the conservative lecture circuit, it hardly seems a practical system to apply to the real world.

I remember what it was like to grow up in the 1950s. The societal norms favored repression of emotion, rigid adherence to dress and behavior codes and de jure as well as de facto separation of the races. Apparently, Snow, Bork and a legion of buttoned-down, uptight legal reactionaries want to turn the clock back to an earlier time, maybe even as far back as 1776.

Well, why not? Secretly, I think men like Robert Bork and Tony Snow yearn for the world inhabited by our forebears, one in which the white American male was god - his industrial work done by slaves or immigrants, his home maintained by the "little woman" (who was not allowed to own property or vote), his children completely under his control and his extra-marital sexual liaisons carried on with impugnity, frequently with women of color.

On a lighter note, life with little Bobby Bork must have been hell. I can just picture his poor mother trying to get him to obey the rules.

MRS. BORK: Bobby, you remember what I told you last week? You deliberately disobeyed the rules of this household and stayed out past curfew. Go to your room. You're grounded.

BOBBY: I choose to ignore that rule, mother.

MOM: You're grounded. Up to your room! Parents have been setting rules for their kids since time began. Upstairs, mister!

BOBBY: No, mother, I'm not going to do anything you tell me to do. Just because a whole bunch of parents decided prior to my existence that parents get to set the rules doesn't mean I have to pay attention to them. It's time that we kids cleaned up the mess parents have made. The Constitution says nothing about curfew. I don't believe in precedent. I will disobey you in any and all instances where I believe you did not adhere to the basic tenets of Constitutional law as set forth by our founding fathers.

At this point, most parents would end up screaming.

Which is exactly how I feel when faced with the prospect of a Bork "originalist" on the Supreme Court!


SNOW: Justice Sandra Day O'Connor, on the bench since 1981, formally offered her resignation today to President Bush, clearing the way for what could be a very contentious confirmation process for her yet-to-be-determined replacement. Judge Robert Bork joins us now from McLean, Virginia. He was nominated to the high court in 1987 but after heated hearings, the Senate voted him down. Judge Bork, you were savaged so badly that you are now the source of a verb, to be "borked." Do you anticipate a similar, highly personal fight in the case of replacing Sandra Day O'Connor?

BORK: Well, in the first place, I don't mind my name being a verb. It's one form of immortality. (Snow laughs.) Yes, there will, there will be a battle. I don't care - people keep talking about maybe this one will be low-key and dignified. It won't be. If the President goes forward as he has said he would with somebody who sticks to the actual principles of the Constitution - like Judge Scalia, like Judge - Justice Thomas - there will be an enormous battle.

SNOW: Ok, now, it - I was speaking yesterday - I happened to run into somebody who was involved in the White House during your confirmation process - and one of the things that happened is the White House did not take seriously during the summer of 1987 a growing tempest being created by Senator Edward Kennedy and various interest groups and, as a result, the efforts to try to come to your defense were really not up and running until after the vote had taken place. Would it be your advice to the White House to get moving politically right now to come to the aid and defense of whomever the President chooses to nominate?

BORK: That's right. They have to do that. In my case there was a first national political campaign against the candidate. This time there has to be a national political campaign for the candidate as well as against. Otherwise, it's going to be lost.

SNOW: Now, the other ...

BORK: The White House is going to have to lead.

SNOW: Yeah, the White House will have to lead and it's going to be interesting because the President doesn't normally like to get into fights like that. (Bork smiles.) Nevertheless, you anticipate a big fight. Do you - let me talk a little bit about the composition of the court, because you just talked about originals - originalist interpretations of the Constitution - people taking the plain meaning of the text and trying to apply it in the context of the thoughts of the founders of the Constitution back in the 18th century. My question is whether in point of fact you think there is an available pool of justices who will meet that requirement and whether you think the White House will actually nominate such a justice?

BORK: I think there is a pool of candidates who would meet that requirement. We're not talking about, you know, the details of what the founders thought. We're talking about the principles they laid down which have to be applied to today's circumstances and justices must not make up the principles as they go along. But there are such candidates available and I think the President had - I think he will nominate- and if he isn't gonna get a backlash from many of his supporters, he ought to nominate such a person.

SNOW: OK. Let me ask you. There are a number of decisions that deeply trouble the American people. We had the Kello vs New London, Connecticut case - the property rights case. We had a twisted combination of Ten Commandments cases and, frankly, such decisions as Roe versus Wade remain highly controversial as well. Do you think at some point a Supreme Court of the United States is going to have to go back and look at what's happened in the last half-century and try to clean up what is a big mess right now?

BORK: They have to go back and try to clean it up or else the Court will have really destroyed itself as the respected legal institution. The Court is becoming and has become a political institution. That's why both sides are fighting for it so severely. If it were a legal institution, there wouldn't be this much uproar. But, one side hopes to get new things, new law made up by the justices sitting on the bench that they can't get through a legislature ...

SNOW: And I found it very interesting ...

BORK ... and that's why the heat.

SNOW: And I found it very interesting that in some of the opinions last week you had members of the Supreme Court openly calling for a reconsideration and even an overturning of recently decided cases. Typically what you get in Senate hearings is somebody who says: Will you abide by precedent, the "stare decisis" doctrine? Is it your view that that is no longer something somebody should say "yes" to, in other words, you will honor certain precedents but it may be the case that somebody who would be appointed by George W. Bush is likely to think there are a lot of recent precedents they need to revisit?

BORK: Well, of course, in constitutional law, precedent has never been as important as in any other branch of the law and the reason for that is quite simple. If the Court gets a statute wrong, the Congress can come along and cure it by reenacting something that the Court will get right. But, if the Court gets the Constitution wrong, nobody can correct that except the Court and that's the reason - and many justices in the past have said this - that precedent is less important [than] the actual meaning of the Constitution.

SNOW: Judge, you've had 18 years to reflect upon what happened to you in 1987. As somebody gets ready for...

BORK (chuckles): I haven't spent the 18 years

SNOW (smiles): No. But you've had 18 years to think about ...

BORK: I haven't spent 18 years reflecting

SNOW: No, I understand that but the fact - it was a bruising battle. What advice do you have for the President's next nominee in the face what is surely to be a storm of criticism no matter what?

BORK: Well, first, I think the nominee has to make sure that the White House is ready to do battle and then I think the nominee has to go in and give honest answers because - it's unfortunate but the Senators have gotten in the habit of demanding to know how you will vote on every issue, which is a terrible thing. A nominee shouldn't be asked that because he may not know how he'll vote on every issue when he reads the briefs and hears the arguments but - but I think he's gonna be asked that and I think he has to give honest answers, which will cause uproar, and the White House has to be prepared to fight at that point.

SNOW: Alright, Judge Bork, thank you very much for joining us.

[COMMENT: One gets the impression that Judge Bork knows that Bush's choice will be a man since consistently uses only masculine pronouns to describe possible nominees. Or maybe it's just one more sign of his inherent prejudices in favor of the male of the species!]

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