A Self-Imposed Borking

"I am convinced, as I think almost all constitutional scholars are, that Roe v. Wade is an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority. I also think that Roe v. Wade is by no means the only example of such unconstitutional behavior by the Supreme Court."

This bit of public truth-telling was committed by Robert Bork, then a professor at Yale Law School, when he testified before a Senate Judiciary subcommittee on June 1, 1981.

Ironically, Bork made this statement about Roe in the midst of testimony in which he explained why he opposed a law that would have defined life as beginning at conception for 14th Amendment purposes.

Six years later, however, liberals used Bork’s intellectual honesty against him when he was nominated to the U.S. Supreme Court by President Ronald Reagan. On the day after Bork’s nomination, the Washington Post quoted his 1981 statement on Roe in three different places in its "A" section. The New York Times quoted it twice.

For this and other acts of candor on constitutional issues, Bork was defeated, 58-to-42, in a Senate that had a 55-to-45 Democratic majority.

In trashing Bork, the liberal establishment tried to send a blunt message to would-be strict-constructionist Supreme Court justices (and the Republican presidents who might nominate them): Openly defend the original meaning of the Constitution as honestly as Bork defended it in his career, and we will do everything we can to stop you from being confirmed to the high court.

Despite the fact that his party now enjoys a 55-to-45 majority in the Senate, President Bush seems to have taken this message to heart. He has now made two Supreme Court nominations, John Roberts and Harriet Miers. Neither can be accused of committing Borkian candor on constitutional issues.

When Roberts was found to have written sharp things about constitutional issues as a lawyer in the White House, the Justice Department or in private practice, he was always able to demur that the views he had expressed in each of those capacities might not be his own, but rather his client’s.

Miers’ record is so free of any clear and candid expression on issues of constitutional law that the nation is left debating her church membership, her actions as president of the State Bar of Texas, her political contributions and a questionnaire she filled out for Texans United for Life (albeit with perfect pro-life answers) as a Dallas City Council candidate in 1989.

Bush, it must be assumed, has done a pre-emptive Borking of his own Supreme Court nominees.

The traditional Borking, which was tried on several of President Bush’s own circuit-court nominees, proceeded like this:

1) A Republican president nominated to a federal appellate court someone who had made public statements or issued opinions that indicated he or she was likely to take a strict constructionist approach to the law and the Constitution.

2) These statements or opinions were unearthed by Senate Democrats and liberal interest groups, and publicized by their allies in the liberal media.

3) The Democrats decry the statements and/or opinions as evidence the nominee is "out of the mainstream" or an "extremist."

If this did not produce the votes needed to stop the nominee, character assassination was employed. When that did not work on President Bush’s appellate court nominees during the president’s first term, the Democrats resorted to filibustering.

They knew, and the Republicans knew, that conservatives were one move away from finally breaking the cycle of Borking. President Bush would nominate to the Supreme Court an unabashed strict constructionist with a record to prove it. If the Democrats took the Borking process on that nominee all the way to a filibuster, the Republican Senate majority would change Senate rules and end the filibuster of judicial nominees.

But Bush blinked — twice — and picked nominees he thought would provide the Democrats with no material for an attempted Borking.

That means, among other things, that unless Harriet Miers surprises the nation by going into a Republican-controlled Judiciary Committee and speaking with a candor that hasn’t been heard there since Robert Bork testified before a Democrat-controlled committee in 1987, young strict-constructionist lawyers around the country will understandably draw the conclusion that if they ever publicly say or write what they honestly think about great constitutional controversies, they can forget about serving on our nation’s highest court.