Judicial Confirmation ‘Hit a New Low’ with '87 Partisan Attacks on Bork, Top Legal Experts Say

December 19, 2012 - 6:26 PM

OBIT BORK

FILE - In this Sept. 16, 1987 file photo, U.S. Supreme Court nominee Robert H. Bork testifies before the Senate Judiciary Committee. (AP Photo/Charles Tasnadi)

(CNSNews.com) - One of America’s foremost experts on constitutional law says the death of Judge Robert H. Bork Wednesday is not only a cause for mourning for many, but should also be the cause for some soul-searching.

“Judge Bork was a towering figure in constitutional theory over the last 50 years,” former U.S. Judge Michael McConnell told CNSNews.com on Wednesday.

McConnell, who currently teaches law at Stanford University and is a senior fellow at the Hoover Institution, said Bork is best known for the defeat of his nomination to the United States Supreme Court in 1987, which “still has reverberations for our judicial nomination process today.”

“I think that his death should cause a lot of people to be doing some soul searching about the way in which the judicial confirmation process is conducted, because his nomination battle was really the first – and hit a new low – in terms of inaccurate and distorted characterizations of his record and attacks on his character,” McConnell told CNSNews.com from Palo Alto, Calif.

“It really changed the process from one of examining whether nominees were of good character and highly qualified to one in which both sides engage in partisan politics at the most vitriolic,” he said.

In 1987, liberal activist groups outside of Congress joined hands with liberal Senate Democrats to paint Bork, a prominent voice for judicial restraint, in the worst possible light to defeat him.

Kennedy and Biden

Then-Sen. Ted Kennedy (D-Mass.) and Sen. (Now Vice President) Joe Biden (D-Del.), during 1987 Supreme Court confirmation hearing for Robert Bork. (AP photo)

Then-Sen. Ted Kennedy (D-Mass.) and then-Senate Judiciary Committee Chairman Joe Biden (D-Del.), blocked Bork's nomination because the conservative jurist had stated in 1981 that he believed the Supreme Court’s 1973 Roe v. Wade decision legalizing abortion was unconstitutional and a “judicial usurpation of state legislative authority.”

During Bork’s confirmation hearings, Kennedy said: “Robert Bork’s America 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, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government.”

The Senate rejected Bork's nomination by a vote of 42-58.

McConnell, who is regarded as one of today’s top constitutional experts, was contemptuous of Kennedy’s characterization.

“Not a word of it is true,” McConnell said. “Every word of it is exaggerated, distorted, taken out of context. It’s as if he would take anything that might have been stated in a particular context and make it look as extreme as possible.”

“If Sen. Kennedy’s own record had been treated in this way, he would have been looking just as bad,” McConnell added.

The tactic is now being used in virtually every major judicial confirmation process, according to McConnell.

“This has had a real effect on the judiciary. It has meant that the judiciary has been converted to a political football rather than a rather apolitical and independent force in American legal life.”

Jay Sekulow, chief counsel of the American Center for Law and Justice, agreed with McConnell, saying liberals hated Bork -- precisely because he was the foremost exponent of judicial restraint.

“Robert Bork was “the father of the whole judicial restraint movement,” Sekulow told CNSNews.com. “He was a guy that not only had a correct judicial philosophy but also the correct judicial temperament and I think the Supreme Court lost a great opportunity when he was not confirmed.”

A former Solicitor General, Yale law professor and federal judge, Bork had written widely on the tendency of judges to make – rather than interpret – the law.

“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,” Bork wrote.

Both Sekulow and McConnell said Bork had a “tremendous influence on an entire generation” of attorneys.

Northwestern law Professor Steven G. Calabresi, who served as a law clerk to Judge Bork and was his biographer, compared his former boss to St. Thomas More, the English Catholic jurist beheaded for treason.

"Judge Bork, like St. Thomas More, was a man for all seasons, who towered over all of his contemporaries,” Calabresi said.

“Judge Bork revolutionized constitutional law with his writings on originalism, and he revolutionized antitrust law with his writings on law and economics. Judge Bork helped critically in the founding of the Federalist Society, and his career combined the life of the mind with the life of action,” he said.

“Judge Bork was one of the most important defenders of the Constitution,” he added.

Former Attorney General Edwin Meese III, chairman of The Heritage Foundation’s Center for Legal and Judicial Studies, served with Bork in the Reagan administration.

Meese said the former judge “leaves a lasting legacy.”

“Judge Robert Bork was one of our nation’s greatest legal minds and a distinguished champion of the Constitution,” Meese said.

Robert Heron Bork died Wednesday of heart complications at Virginia Hospital Center in Arlington, Va. He was 85.