October 24, 2008
By Deborah O'Malley
Twenty-one years ago today, a cabal of liberal senators
prevented one of the greatest legal minds of the 20th century from
sitting on the Supreme Court. Robert Bork, then a judge on the D.C.
Circuit Court of Appeals and a former solicitor general, lost by a
vote of 58-42 - an outcome Sen. Joseph Biden praised in his recent
debate with Gov. Sarah Palin.
Mr. Biden boasted he led the fight against Judge Bork after
realizing the "ideology" of nominees should be a considerable
factor. But what Mr. Biden hails as a great "intellectual change"
of his own has served only to insert vitriolic party politics into
the judicial process and muddle the public's understanding of the
judiciary's proper role.
Judge Bork's confirmation hearings are seen by many as a
low-watermark in the history of judicial nominations. Those
opposing Robert Bork launched an unprecedented campaign against
him, utilizing the politics of personal destruction to vilify an
honorable man with an outstanding judicial record. Between leaking
his video-rental record (which revealed nothing press-worthy) and
distorting his civil rights views, Judge Bork's opponents sought to
stall his confirmation by any means imaginable. None of this, of
course, related to his qualifications or understanding of the
Mr. Biden brags that he was the first Judiciary Committee
chairman to "forthrightly state that it matters what your judicial
philosophy is." Yet Mr. Biden confuses "philosophy" with
"ideology," erroneously using the words interchangeably. Asking a
nominee about his judicial philosophy involves inquiring about the
methodology he would use to find the meaning of the law's text. But
questioning about ideology (as that term is used by Mr. Biden), is
Keeping to this latter approach, Mr. Biden routinely pressures
nominees to state how they would have ruled in numerous cases,
including cases involving issues likely to re-emerge before the
court, such as abortion cases. Candidates have responded by
suggesting that answering such questions will undermine their
ability to judge cases impartially by the merits - a response that
has only irritated Mr. Biden.
For an example of the "judicial philosophy" approach, Mr. Biden
need look no further than his opponent, Mrs. Palin. To better
understand her approach to judicial nominations, the Legal Times
interviewed candidates considered by Palin for a recent spot on the
Alaska Supreme Court.
Andy Harrington, executive director of Alaska Legal Services
Corp., was one of four nominees, and his recollection of the
interview process sheds light on Mrs. Palin's approach to selecting
judges. His interview occurred only days after the state supreme
court struck down a parental-consent statute. Despite Mrs. Palin's
staunch opposition to what she called an "outrageous" ruling, Mr.
Harrington said he was pleasantly surprised she didn't ask him
about the case during the interview.
Mr. Biden's approach to judicial confirmations after the Bork
defeat demonstrates he stayed true to his promise of looking past
mere qualifications and intellect. When questioning Chief Justice
nominee John Roberts about end-of-life issues, Mr. Biden asked him
to consider whether the state has the authority to make laws
preventing the removal of comatose family members from life
support. As if to pre-empt Justice Roberts from making an argument
from law, Mr. Biden demanded that Roberts answer the question "as a
father ... not what the Constitution says; what do you feel?"
Justice Roberts correctly asserted he wouldn't answer in the
context of a father because it is not the role of a judge to make
such decisions based on personal preferences. And indeed it is not.
The role of a judge is to interpret the law as it is written, not
to confer legal status on his personal policy predilections, his
affinity for any particular litigant, or his own feelings.
Of course, there's a reason Mr. Biden wants judges to rule based
on such whims, because, as Judge Bork noted in his best-selling
book "The Tempting of America," "If [judges] can be persuaded to
abandon the idea of original understanding, they are quite likely
to frame constitutional rules that reflect the assumptions of
modern liberal culture." This is, unfortunately, the goal of Mr.
Biden's emphasis on ideology: assuring that judges promote liberal
policies from the bench.
Prior to Robert Bork, senators evaluated candidates based on
their qualifications - their knowledge of and respect for the law,
judicial temperament and demonstrated integrity.
Whether Mr. Biden is advising a President Obama on judicial
issues come January or continues to represent the citizens of
Delaware on Capitol Hill, he would best serve the American people
by reversing his great "intellectual change." Only then can he help
restore the confirmation process to its ordered constitutional
role, not one in which senators attempt to "bork" judges based on
predicted judicial outcomes.
Deborah O'Malley is a Research Associate in the Center for Legal
and Judicial Studies at The Heritage Foundation
First appeared in The Washington Times
Twenty-one years ago today, a cabal of liberal senators prevented one of the greatest legal minds of the 20th century from sitting on the Supreme Court. Robert Bork, then a judge on the D.C. Circuit Court of Appeals and a former solicitor general, lost by a vote of 58-42 - an outcome Sen. Joseph Biden praised in his recent debate with Gov. Sarah Palin.
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