Skip to comments.Reversing the Bork Defeat - (Bill Kristol has this one nailed cold!)
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.
"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."
I don't like Kristol, but this is a good read, Thanks for posting it
The lines are drawn. The expectations are set. This is it.
Bork the senate, sounds good to me!
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 ...
I disagree with Kristol about McConnell's Conservative credentials. I believe Luttig is far more Conservative than McConnell
I don't think he can because O'Connor said she would serve until a replacement is confirmed
Is there any reason Bork cannot be nominated? :-)
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.
?! 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.
Reagan was a spendthrift??
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.
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.
If he nominates Attorney General Gonzales, I am going to become an independent.
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.
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!
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.
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.
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.
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.
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.
Why not just re-nominate Bork?
"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"?
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.
It is far more effective to appear informed, firm, and positive.
An incredible statement. The next time you see something that you believe violates the Constitution, I trust that you will do the same.
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.
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.
You seem to think Gonzales is OK?
In God's name, why?
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.
No. I never implied that. I don't trust him at all.
Bork the senate, sounds good to me!
Then we could have Bork-barrel spending!!!
The Democrats will viciously fight any nominee Bush gives them....
Let's nominate Koko the Gorilla and see what happens.
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.
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.
"Is there any reason Bork cannot be nominated?"
Bork is 78 years old.
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?
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.
Nominate Ann Coulter, just for the entertainment value
"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
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.
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.
Alas, I fear he is too old. Too bad.
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!