Bork: 'Brilliant' Roberts the Best Conservatives Will Get

By Nathan Burchfiel | July 7, 2008 | 8:31 PM EDT

( - One-time Supreme Court nominee Robert Bork Tuesday lashed out at the high court and the U.S. Senate for politicizing the judiciary and offered little hope to conservatives hoping to see Roe vs. Wade, the 1973 ruling that legalized abortion, overturned.

Bork said the possibility is "virtually nil" that Roe vs. Wade will be overturned in the next 10 years, even with John Roberts presiding as chief justice and a more conservative jurist replacing Sandra Day O'Connor. "I simply do not know if [Roberts] would vote to overturn constitutional mistakes of the past," Bork said.

Bork was nominated by President Ronald Reagan in 1987 for a seat on the Supreme Court, but came under heavy political attack from Democrats, especially Massachusetts Sen. Ted Kennedy, and was ultimately rejected by the Senate 58 to 42. The campaign to ruin Bork's nomination eventually became a prototype for the political Left, resulting in the judge's name being used as a verb.

A political or judicial nominee who had been "borked" was someone who had been subjected to a scathing attack by special interest groups and many in the establishment media. Tuesday, Bork joked about having his own verb. "I don't mind it," he said. "It's a kind of immortality."

But Bork was less understanding when it came to analyzing the behavior of the Supreme Court. The high court, Bork said, "has made itself the most important branch of government. Today's hearings are political circuses and there may be no going back," he told his audience at the National Press Club in Washington, D.C.

Roberts, President Bush's choice to replace the late William Rehnquist as chief justice of the Supreme Court, is well prepared for the post, Bork said. While praising Roberts for his "brilliant mind," Bork said he has "never heard [Roberts] say anything about judicial philosophy."

And that silence about judicial philosophy is the best decision Roberts could have made, Bork said, because it limits the political attacks against him. Bork's own outspoken judicial philosophy gave his political enemies many opportunities with which to attack him in 1987 and helped doom his nomination.

Speaking from that experience, Bork said potential Supreme Court nominees should never write or say anything about the court and never commit their vote on any issue in a Senate hearing.

"Senators now demand that nominees state positions," Bork said, "in an effort to make them state campaign promises." But he said the judicial branch shouldn't be politicized. The only way to fix the problem, he said, is to nominate and confirm judges who "will abide by the Constitutional principles" of the founding fathers.

Bork's political philosophy is characterized as constitutional originalism. He believes the Constitution should be interpreted "according to the principles the founders believed themselves to be enacting," not the way judges think the Constitution should work.

He added that conservatives should be happy with Roberts' nomination, in spite of the fact that the Bush nominee has not stated a position on hot button issues like abortion, affirmative action and homosexual marriage. "If they insist on a nominee who makes a campaign promise to them ... maybe he should not be confirmed," Bork said.

"They're not going to get any better nominees through," he added. However, Bork concluded that it would be "politically attractive" for the president to nominate a woman, possibly a minority, to replace retiring Justice Sandra Day O'Connor.

Roberts was originally nominated to replace O'Connor, but President Bush turned to Roberts for the position of chief justice following Rehnquist's death on Saturday. O'Connor will remain in her position as associate justice until a replacement is confirmed.

Bork suggested two justices from the U.S. Circuit Court of Appeals for the District of Columbia -- Judge Raymond Randolph and Judge Douglas Ginsberg. The latter was originally chosen by President Reagan to replace Bork as the nominee to the Supreme Court in 1987, but Ginsberg withdrew himself from consideration when it was revealed that he had used marijuana in the 1960s and 1970s.

Subscribe to the free daily E-Brief.

E-mail a comment or news tip to Nathan Burchfiel.

Send a Letter to the Editor about this article.