Jeffrey Rosen is a liberal in good standing. He is the legal affairs editor of The New Republic. He posted a piece on the passing of Robert Bork. Rosen was a summer intern on Joe Biden’s staff that summer. (May I say that some of the colloquies between the uber dense Biden and the uber brilliant Bork during the confirmation hearings make for some amusing viewing.) Although Rosen opposed the confirmation of Bork, he regrets the manner in which his nomination was defeated:
But even from the sidelines, as I celebrated Bork’s defeat, I remember feeling that the nominee was being treated unfairly. Senator Edward Kennedy set the tone with a demagogic attack. “Robert Bork’s America,” he said, “is a land 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, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans.”
Bork’s record was distorted beyond recognition, and his name was transformed from a noun into a verb. The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking. And it had obvious costs for Bork.
If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives. There is no other sense in which the Constitution can be what article VI proclaims it to be: “Law….” This means, of course, that a judge, no matter on what court he sits, may never create new
constitutional rights or destroy old ones. Any time he does so, he violates not
only the limits to his own authority but, and for that reason, also violates the
rights of the legislature and the people….the philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution.
Robert Bork, one of the titans of American Law, has died. The foremost expert on anti-trust, and a champion of originalism in regard to the Constitution, Bork was appointed by President Reagan to the United States Court of Appeals for the District of Columbia. In 1987 he was nominated by Reagan for the Supreme Court. In a campaign of lies and personal vilification spearheaded, fittingly enough, by Senator Edward M. Kennedy his nomination was defeated. If he had been confirmed, Roe v. Wade would now be merely a bitter memory. Continue reading
[Updates at the bottom of this article as of 1:47pm CDT AD 10-1-2009]
[I’ve done my best to tone down the explicit talk related to Roman Polanski, consider this a PG article instead of the usual G]
Famed Hollywood movie director Roman Polanski, who has been hiding in France since 1978, was arrested five days ago by the Swiss Justice Ministry while trying to enter Switzerland at Zurich Airport for an outstanding 1978 US arrest warrant. Polanski was going to attend the Zurich Film Festival to receive a Lifetime Achievement Award. He is now waiting extradition, which he is appealing, to the US for his crime of engaging in unlawful intimate relations* of a 13 year old girl.