Free Republic
Browse · Search
News/Activism
Topics · Post Article

Skip to comments.

Reversing the Bork Defeat - (Bill Kristol has this one nailed cold!)
WEEKLY STANDARD.COM ^ | JULY 1, 2005 | BILL KRISTOL

Posted on 07/02/2005 8:04:07 PM PDT by CHARLITE

ON OCTOBER 23, 1987--a day that lives in conservative infamy--Robert Bork's nomination to the Supreme Court was rejected by a Democratic Senate. Now, 18 years later, George W. Bush has the chance to reverse this defeat, and to begin to fulfill what has always been one of the core themes of modern American conservatism: the relinking of constitutional law and constitutional jurisprudence to the Constitution.

The restoration of constitutional government has been the one area in which modern conservatism has had the least success. From Ronald Reagan to George W. Bush, conservative economic policies have been (more or less) pursued, and, when pursued, have been vindicated. From Ronald Reagan to George W. Bush, conservative foreign policies based on American strength and American principles have been--when pursued--remarkably successful. One might even say that, in both economics and foreign policy, the degree of conservative success has been far greater than anyone would have imagined in 1980.

But in the area of constitutionalism, conservative goals have been thwarted, and the key moment of failure, from which conservative constitutionalism has never recovered, was the Bork defeat in 1987. For the last 18 years constitutional jurisprudence has continued to drift away from a sound constitutionalism based on the written Constitution and a proper deference to popular self-government in many areas of public life. Bork's defeat was both a cause and a symbol of this continued downward drift. Now, with one of the two swing votes on the Supreme Court stepping down, George W. Bush has a chance to begin to make constitutional history, as he is certainly attempting to do in foreign policy and, to a lesser degree, in economic policy.

There are two pieces of good news to keep in mind as President Bush ponders his choice. The first is that, by contrast with the situation in 1987, the Senate has a Republican majority. The second is that President Bush can choose from among many, many well-qualified conservative constitutionalists. Although President Bush is understandably fond of and loyal to his attorney general Alberto Gonzales, it's simply a fact that Gonzales does not have the stature of several other possible candidates. I now believe that, though tempted, President Bush will leave his attorney general in his current office.

The president has the luxury of choosing among such candidates as Michael McConnell, probably the leading constitutional thinker of his generation, now serving on the 10th Circuit; J. Michael Luttig, who has served with great distinction for 14 years on the 4th Circuit; the remarkable Janice Rogers Brown, with almost a decade on the California Supreme Court and a recent confirmation to the D.C. Circuit Court of Appeals; as well as other federal and state supreme court judges--some of whom happen to be women (if that matters), and all of whom have strong credentials.

Most of the Democrats will fight any strong candidate. It won't matter if that candidate doesn't have a paper trail, because any nominee will have to make his or her general manner of constitutional thinking clear to the Senate--which thinking will almost inevitably provoke opposition from the left. But such opposition, however vociferous the rhetoric, will not be unstoppable. Indeed, looking at the current Senate, I do not believe that there are 40 Democratic votes to sustain a filibuster against an objectively well -qualified conservative nominee. And in any case a filibuster would be very difficult for the Democrats to defend.

George W. Bush's has been a Reaganite presidency in the areas of foreign and economic policy. He has impressively adjusted Reaganite principles to deal with today's challenges. Now he has the chance to once again follow Reagan's lead by nominating a jurist as impressive as Robert Bork for the Supreme Court. And now he has the chance to surpass Reagan--by getting that nominee confirmed.


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government; News/Current Events; Philosophy; Politics/Elections
KEYWORDS: bork; conservative; constructionist; court; georgewbush; jurists; kristol; nominations; opportunity; originalist; robertbork; scotus; supreme
Navigation: use the links below to view more comments.
first 1-5051-60 next last
"From Ronald Reagan to George W. Bush, conservative foreign policies based on American strength and American principles have been--when pursued--remarkably successful. One might even say that, in both economics and foreign policy, the degree of conservative success has been far greater than anyone would have imagined in 1980.

"But in the area of constitutionalism, conservative goals have been thwarted, and the key moment of failure, from which conservative constitutionalism has never recovered, was the Bork defeat in 1987."

1 posted on 07/02/2005 8:04:10 PM PDT by CHARLITE
[ Post Reply | Private Reply | View Replies]

To: paulat; sourcery; martin_fierro; Tallguy; DoughtyOne; Soul Seeker; Paul Atreides; pollyannaish; ...
SCOTUS Ping!

Char:)

2 posted on 07/02/2005 8:05:55 PM PDT by CHARLITE (I propose a co-Clinton team as permanent reps to Pyonyang, w/out possibility of repatriation....)
[ Post Reply | Private Reply | To 1 | View Replies]

To: CHARLITE

I don't like Kristol, but this is a good read, Thanks for posting it


3 posted on 07/02/2005 8:09:26 PM PDT by MJY1288 (Whenever a Liberal is Speaking on the Senate Floor, Al-Jazeera Breaks in and Covers it LIVE)
[ Post Reply | Private Reply | To 1 | View Replies]

To: CHARLITE
    George W. Bush's has been a Reaganite presidency in the areas of foreign and economic policy....And now he has the chance to surpass Reagan--by getting (jurist as impressive as Robert Bork) confirmed.

The lines are drawn. The expectations are set. This is it.

4 posted on 07/02/2005 8:10:50 PM PDT by Ronaldus Magnus
[ Post Reply | Private Reply | To 1 | View Replies]

To: CHARLITE

Bork the senate, sounds good to me!


5 posted on 07/02/2005 8:11:59 PM PDT by Not now, Not ever! (This tagline is temporarily closed for re-modeling)
[ Post Reply | Private Reply | To 1 | View Replies]

To: CHARLITE

Why can't President Bush just do a recess appointment to cover the O'Conner retirement? Seems like the most direct way to do it ...


6 posted on 07/02/2005 8:19:00 PM PDT by Ken522
[ Post Reply | Private Reply | To 1 | View Replies]

To: CHARLITE

I disagree with Kristol about McConnell's Conservative credentials. I believe Luttig is far more Conservative than McConnell


7 posted on 07/02/2005 8:19:16 PM PDT by MJY1288 (Whenever a Liberal is Speaking on the Senate Floor, Al-Jazeera Breaks in and Covers it LIVE)
[ Post Reply | Private Reply | To 2 | View Replies]

To: Ken522

I don't think he can because O'Connor said she would serve until a replacement is confirmed


8 posted on 07/02/2005 8:20:37 PM PDT by MJY1288 (Whenever a Liberal is Speaking on the Senate Floor, Al-Jazeera Breaks in and Covers it LIVE)
[ Post Reply | Private Reply | To 6 | View Replies]

To: CHARLITE

Is there any reason Bork cannot be nominated? :-)


9 posted on 07/02/2005 8:25:20 PM PDT by Gondring (The can have my Bill of Rights when they pry it from my cold dead hands.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: CHARLITE

I don't care what Kristol says, he is the McCain of the media. A useless self promoter who gets press out of stabbing his friends in the back.


10 posted on 07/02/2005 8:31:54 PM PDT by Rodney King (No, we can't all just get along.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Ronaldus Magnus
George W. Bush's has been a Reaganite presidency in the areas of foreign and economic policy..

?! Biggest farm bill in the history of the country, biggest expansion of medicare since it was founded (senior drug benefit), $15 billion for AIDS to the sinkhole known as Africa... He's not quite the spendthrift that Reagan was. I wish Bush was more economical with our money.

11 posted on 07/02/2005 8:32:08 PM PDT by coloradan (Hence, etc.)
[ Post Reply | Private Reply | To 4 | View Replies]

To: coloradan

Reagan was a spendthrift??


12 posted on 07/02/2005 8:41:05 PM PDT by Dr.Hilarious (If Al Qaeda took over the judiciary and mainstream media, would we know the difference?)
[ Post Reply | Private Reply | To 11 | View Replies]

To: CHARLITE
And in any case a filibuster would be very difficult for the Democrats to defend.

Since when has that made a difference? The demorats will filibuster whenever and whereever they feel like it. Always have, always will. Nothing has changed to change that.

13 posted on 07/02/2005 8:42:45 PM PDT by taxesareforever (Government is running amuck)
[ Post Reply | Private Reply | To 1 | View Replies]

To: coloradan
He's not quite the spendthrift that Reagan was

President Reagan may have alway proposed balanced budgets, but he ending up literally signing on to the biggest relative expansion in the size of the federal budget since the Second World War. Sadly, no president in our lifetime has had the courage to make the needed reductions in the size our federal government.

14 posted on 07/02/2005 8:43:07 PM PDT by Ronaldus Magnus
[ Post Reply | Private Reply | To 11 | View Replies]

To: Not now, Not ever!

If he nominates Attorney General Gonzales, I am going to become an independent.


15 posted on 07/02/2005 8:49:01 PM PDT by BOBWADE
[ Post Reply | Private Reply | To 5 | View Replies]

To: CHARLITE

Because of the Bork travesty, we got Anthony Kennedy as his replacement, and then Souter was nominated to avoid that kind of situation. The Dems were very effective in their lying about Bork. Now is the time to bring all of that garbage to an end.


16 posted on 07/02/2005 8:54:27 PM PDT by DeweyCA
[ Post Reply | Private Reply | To 2 | View Replies]

To: MJY1288
" I believe Luttig is far more Conservative than McConnell."

Correct.........but I would personally LOVE to see Bush appoint Luttig to take O'Connor's place and then Janice Rogers Brown as Chief Justice.....within HOURS of receiving Mr. Justice Rehnquist's notice of retirement!

That's my idea of a double whammy......and it would indeed be "supreme" retribution for the Bork disaster!

I don't think that I will ever get over how pliant our Repubicans were in voting Ginsburg IN, while still (and forever) stinging from the Bork rejection.

IMO, our Republicans in both house of the Congress need to grow some TEETH.......quickly!

Thanks for your great comment!

Char :)

17 posted on 07/02/2005 9:10:26 PM PDT by CHARLITE (I propose a co-Clinton team as permanent reps to Pyonyang, w/out possibility of repatriation....)
[ Post Reply | Private Reply | To 7 | View Replies]

To: taxesareforever
The demorats will filibuster whenever and whereever they feel like it. Always have, always will. Nothing has changed to change that.

They will attempt to filibuster. They'll throw everything they have, but the Dems cannot make it stick. Yes, things have changed. The Constitutional option push made a difference.

18 posted on 07/02/2005 9:11:42 PM PDT by NutCrackerBoy
[ Post Reply | Private Reply | To 13 | View Replies]

To: CHARLITE

The Democrats will viciously fight any nominee Bush gives them, no matter how moderate. As long as we are going to have a fight, we might as well be fighting for the best candidate we can, and have a battle worth winning. There is no use fighting over the moderates.


19 posted on 07/02/2005 9:26:49 PM PDT by Vince Ferrer
[ Post Reply | Private Reply | To 1 | View Replies]

To: CHARLITE

Democrats lost the House, Senate, majority of Governorships for a reason, or better: multiple reasons.
Let the majority select, recommend, and vote along with the minority to fill this Supreme Court vacancy.
Everything else would be disenfranchising a majority.


20 posted on 07/02/2005 10:00:37 PM PDT by hermgem
[ Post Reply | Private Reply | To 1 | View Replies]

To: Vince Ferrer
The Democrats will viciously fight any nominee Bush gives them....

If Bush nominated a person with credentials and judicial record identical to that of O'Connor's at the time of her nomination, that nomination would be filibustered.

21 posted on 07/02/2005 11:15:01 PM PDT by Mike Darancette (Mesocons for Rice '08)
[ Post Reply | Private Reply | To 19 | View Replies]

To: MJY1288
I don't think he can because O'Connor said she would serve until a replacement is confirmed

Nothing in the Constitution limits the number of Supreme Court justices to nine. It started out at six. The President can appoint a tenth if he so desires. FDR did.

22 posted on 07/02/2005 11:28:56 PM PDT by FreedomCalls (It's the "Statue of Liberty," not the "Statue of Security.")
[ Post Reply | Private Reply | To 8 | View Replies]

To: CHARLITE

Why not just re-nominate Bork?


23 posted on 07/02/2005 11:29:54 PM PDT by FreedomCalls (It's the "Statue of Liberty," not the "Statue of Security.")
[ Post Reply | Private Reply | To 17 | View Replies]

Comment #24 Removed by Moderator

To: MJY1288

"believe Luttig is far more conservative than McConnell."

I'm not calling McConnell a liberal, which is obviously isn't. But I would trust him less than Luttig and some other people. The fact that he opposed the Clinton impeachment is a problem -- given that we're fighting what amounts to a civil war in this country, he should not have aided the enemy. If he honestly believed the impeachment violated the spirit of the Constitution, he should have kept his mouth shut.

Another problem with McConnell: Some of the liberal law profs endorsed him for the appellate appointment. Do they know something we don't? And what are we to make of the fact that he clerked with William Brennan, an outrageously liberal "justice"?


25 posted on 07/02/2005 11:57:55 PM PDT by California Patriot
[ Post Reply | Private Reply | To 7 | View Replies]

To: CHARLITE
Conservatives need to start reminding the public that Republicans confirmed Ruth Bader Ginsburg at every opportunity. If conservatives can confirm a qualified but far leftist ACLU lawyer, then Democrats can consent to a qualified conservaitve.
26 posted on 07/02/2005 11:58:16 PM PDT by Carry_Okie (There are people in power who are truly evil.)
[ Post Reply | Private Reply | To 1 | View Replies]

To: Carry_Okie

Very good point, "Okie." You're absolutely right.

Let me add this: The Rats' strategy will be to sweet-talk Bush into appointing a moderate like Gonzales. If he does, that squish will be confirmed, thereby avoiding any risk of the nuclear option. The Rats want to avoid a vote on the nuclear option at all costs, so they can preserve their ability to veto a Rehnquist replacement and other possible replacements should there be other vacancies.

Conservatives, call the White House NOW and TRASH GONZALES. Bush wants him on the Court sooner or later. Deliver the message: THIS IS NOT WHAT WE VOTED FOR, W.


27 posted on 07/03/2005 12:03:36 AM PDT by California Patriot
[ Post Reply | Private Reply | To 26 | View Replies]

To: California Patriot
If you are going to point out a disfavor for Gonzales, by all means, suggest a list of preferable alternatives.

It is far more effective to appear informed, firm, and positive.

28 posted on 07/03/2005 12:06:03 AM PDT by Carry_Okie (There are people in power who are truly evil.)
[ Post Reply | Private Reply | To 27 | View Replies]

To: California Patriot
If he honestly believed the impeachment violated the spirit of the Constitution, he should have kept his mouth shut.

An incredible statement. The next time you see something that you believe violates the Constitution, I trust that you will do the same.

29 posted on 07/03/2005 12:07:47 AM PDT by MARTIAL MONK
[ Post Reply | Private Reply | To 25 | View Replies]

To: Carry_Okie

And what makes you think I am uninformed and not firm?

I was expressing passionate opposition to Gonzales, which is the most important message for W. to hear right now. He loves this guy, God knows why. Cronyism in Supreme Court appointments is a disgrace, especially when it would lead to another O'Connor.

Who do I like: Michael Luttig, Edith Jones, Emilio Garza are the ones I really trust. Luttig above all, probably.
Several others may be equally good, but I've given you three.


30 posted on 07/03/2005 12:11:26 AM PDT by California Patriot
[ Post Reply | Private Reply | To 28 | View Replies]

To: MARTIAL MONK

I said the SPIRIT of the Constitution.

The impeachment clearly and obviously did not violate the LETTER of the Constitution. If something violates the LETTER of the Constitution, I'd say there is NORMALLY an obligation to speak out. I wouldn't say that's always the case, especially when it would tend to be interpreted in favor of a dirtbag like Clinton and his White House mafia.


31 posted on 07/03/2005 12:14:29 AM PDT by California Patriot
[ Post Reply | Private Reply | To 29 | View Replies]

To: Carry_Okie

You seem to think Gonzales is OK?

In God's name, why?


32 posted on 07/03/2005 12:15:42 AM PDT by California Patriot
[ Post Reply | Private Reply | To 28 | View Replies]

To: Vince Ferrer

Don't let their definition of "moderate" stick though. What they call "extremists" are really just strict constructionists very much moderate considered in the context of broader American judicial history. Use of that term by liberals is a ploy, in the spirit of Goebles, to shape public opinion: if you repeat a lie often enough, people will believe it.


33 posted on 07/03/2005 12:24:37 AM PDT by Lexinom
[ Post Reply | Private Reply | To 19 | View Replies]

To: California Patriot
I have nothing against expressing a distaste for Gonzales. I am merely saying that expressing an alternative as well is much more persuasive.
34 posted on 07/03/2005 2:54:40 AM PDT by Carry_Okie (There are people in power who are truly evil.)
[ Post Reply | Private Reply | To 30 | View Replies]

To: California Patriot
You seem to think Gonzales is OK?

No. I never implied that. I don't trust him at all.

35 posted on 07/03/2005 2:55:37 AM PDT by Carry_Okie (There are people in power who are truly evil.)
[ Post Reply | Private Reply | To 32 | View Replies]

To: Not now, Not ever!

Bork the senate, sounds good to me!

Then we could have Bork-barrel spending!!!


36 posted on 07/03/2005 4:08:40 AM PDT by moog
[ Post Reply | Private Reply | To 5 | View Replies]

To: Mike Darancette

The Democrats will viciously fight any nominee Bush gives them....

Let's nominate Koko the Gorilla and see what happens.


37 posted on 07/03/2005 4:10:15 AM PDT by moog
[ Post Reply | Private Reply | To 21 | View Replies]

To: Lexinom

What they call "extremists" are really just strict constructionists very much moderate considered in the context of broader American judicial history. Use of that term by liberals is a ploy.

Everybody uses political labels today. It's the thing to do.


38 posted on 07/03/2005 4:12:00 AM PDT by moog
[ Post Reply | Private Reply | To 33 | View Replies]

To: CHARLITE
President Bush will NEVER be another President Ronald Reagan and indeed he doesn' t try to be!

He only tries to be himself. It is principally the pimps of the election industry (the MSM including Kristol) who are constantly making comparisions and making an infinite number of predictions of what President Bush will (or must) do. I have never seen any of their names on a ballot where the people could show what they think of their prognostications!

If President Bush wants to correct the injustice of the BIDEN-led BORKING emasculation of the confirmation process, then I hope he makes an IMMEDIATE RECESS APPOINTMENT OF ROBERT BORK to the Supreme Court!
39 posted on 07/03/2005 4:25:27 AM PDT by leprechaun9
[ Post Reply | Private Reply | To 1 | View Replies]

To: CHARLITE

BTTT


40 posted on 07/03/2005 6:38:36 AM PDT by kellynla (U.S.M.C. 1st Battalion,5th Marine Regiment, 1st Marine Div. Viet Nam 69&70 Semper Fi)
[ Post Reply | Private Reply | To 1 | View Replies]

To: moog
Everybody uses political labels today. It's the thing to do.

Standard propaganda tactics. There are still a few stubborn holdouts who will recognize it for what it is and make a conscious attempt to refrain from engaging in it. To quote Rush "Words mean things." Throwing around labels that can't be objectively justified isn't helping. This is our government, not Sweeps Week.

41 posted on 07/03/2005 6:42:37 AM PDT by tacticalogic ("Oh, bother!" said Pooh, as he chambered his last round.)
[ Post Reply | Private Reply | To 38 | View Replies]

To: Gondring

"Is there any reason Bork cannot be nominated?"
Bork is 78 years old.


42 posted on 07/03/2005 6:44:59 AM PDT by kellynla (U.S.M.C. 1st Battalion,5th Marine Regiment, 1st Marine Div. Viet Nam 69&70 Semper Fi)
[ Post Reply | Private Reply | To 9 | View Replies]

To: MJY1288

One thing McConnel would have, though, is the intellectual firepower to re-shape the court or at least to give it intellectual power. That is what I think he should look for: the "X" court. It needs to be a leading decision maker and a leading force for constitutionalism a counter just a stron gas the "Warren Court" and a worthy successor to the "Rehnquist court"- even if only in dissent.

You obviously know about these guys...what about some of teh bigs on the 7th circuit? What about...the Posner court? How old is he? I know he might be seen as a bit too libertarian...but he certainly would have done us right on the takings case.

If you counter that by putting on someone like Noonan on the 9th (?) and maybe McConnell (for an associate position), then, though none of them are Robert Bork, they will be good, solid justices and more constitutional than not...and they can back it up with intellect approaching Scalia.

I sure wish someone would ask MY opinion on this.....

What do you thinK?


43 posted on 07/03/2005 6:49:40 AM PDT by ConservativeDude
[ Post Reply | Private Reply | To 7 | View Replies]

To: CHARLITE

From what I've learned so far, "I Like Luttig."
How's that for a campaign slogan? :-]
Now, I guess we'll see if GWB has the stones to nominate a conservative.

Semper Fi,
Kelly


44 posted on 07/03/2005 6:51:19 AM PDT by kellynla (U.S.M.C. 1st Battalion,5th Marine Regiment, 1st Marine Div. Viet Nam 69&70 Semper Fi)
[ Post Reply | Private Reply | To 1 | View Replies]

To: moog

Nominate Ann Coulter, just for the entertainment value


45 posted on 07/03/2005 6:55:32 AM PDT by SauronOfMordor (When peace stands for surrender, fear, loss of dignity and freedom, it is no longer peace.)
[ Post Reply | Private Reply | To 37 | View Replies]

To: SauronOfMordor

"Nominate Ann Coulter, just for the entertainment value"

I have a better one, Mark Levin!!!

You want entertainment? Levin would "shock & awe" the entire American media and electorate.

the Lefties in the Senate would have to wear a helmet and flak jacket to face Levin! LOL


46 posted on 07/03/2005 7:02:11 AM PDT by kellynla (U.S.M.C. 1st Battalion,5th Marine Regiment, 1st Marine Div. Viet Nam 69&70 Semper Fi)
[ Post Reply | Private Reply | To 45 | View Replies]

To: Carry_Okie
Conservatives need to start reminding the public that Republicans confirmed Ruth Bader Ginsburg

I think so too but they won't. Everyone involved tries to hide the elephant in the living room -- the fact SC appointments have become brazenly political and partisan. The Orrin Hatch types even swallow the myth that liberals somehow have a "right" to mau-mau "extremist" Republican appointments. At least they won't face that lie head-on. I think the two biggest problems for conservative appointments are named Hatch and Specter.

47 posted on 07/03/2005 7:07:18 AM PDT by Bernard Marx (Don't make the mistake of interpreting my Civility as Servility)
[ Post Reply | Private Reply | To 26 | View Replies]

To: Bernard Marx
I think the two biggest problems for conservative appointments are named Hatch and Specter.

I can't say I disagree with you. This campaign has to be run from the White House. Therefore, I am not hopeful. Bush's history of backing up his nominees sucks, bigtime.

48 posted on 07/03/2005 7:09:32 AM PDT by Carry_Okie (There are people in power who are truly evil.)
[ Post Reply | Private Reply | To 47 | View Replies]

To: Gondring

Alas, I fear he is too old. Too bad.


49 posted on 07/03/2005 7:16:05 AM PDT by Dawgreg (Happiness is not having what you want, but wanting what you have.)
[ Post Reply | Private Reply | To 9 | View Replies]

To: CHARLITE
Correct.........but I would personally LOVE to see Bush appoint Luttig to take O'Connor's place and then Janice Rogers Brown as Chief Justice.....within HOURS of receiving Mr. Justice Rehnquist's notice of retirement!

BUT... it would be far better to elevate Justice Thomas to Chief, but for now, to appoint Mrs. Brown. With her recent confirmation, the Dimwits will be hard pressed to make a case against her. At that point, place Luttig before the Senate...

Justice Thomas has established his credentials, and clearly would be a slap at the Dims... as a trump card!


50 posted on 07/03/2005 7:16:31 AM PDT by pageonetoo (You'll spot their posts soon enough!)
[ Post Reply | Private Reply | To 17 | View Replies]


Navigation: use the links below to view more comments.
first 1-5051-60 next last

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.

Free Republic
Browse · Search
News/Activism
Topics · Post Article

FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson