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October 18, 2005
Now Arguing On Behalf Of The Rebel Alliance ...

... is Judge Robert Bork, famed jurist, constitutional scholar, and the man whose mistreatment at the hands of Senate Democrats two decades ago spawned an eponymous political verb. Bork writes a scathing denunciation of the Bush administration and its approach to Supreme Court nominations in tomorrow's Opinion Journal, arguing that Bush could hardly have damaged the conservative movement more with the Miers nomination than if he intended to do so -- and Bork more than implies that Bush may well have had just that in mind:

With a single stroke--the nomination of Harriet Miers--the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That's not a bad day's work--for liberals. ...

Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until Ms. Miers's performance at her hearing tells us more about her outlook on law, but any significant revelations are highly unlikely. She cannot be expected to endorse originalism; that would alienate the bloc of senators who think constitutional philosophy is about arriving at pleasing political results. What, then, can she say? Probably that she cannot discuss any issue likely to come before the court. Given the adventurousness of this court, that's just about every issue imaginable. What we can expect in all probability is platitudes about not "legislating from the bench." The Senate is asked, then, to confirm a nominee with no visible judicial philosophy who lacks the basic skills of persuasive argument and clear writing.

But that is only part of the damage Mr. Bush has done. For the past 20 years conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that the judge must discern from the relevant materials--debates at the Constitutional Convention, the Federalist Papers and Anti-Federalist Papers, newspaper accounts of the time, debates in the state ratifying conventions, and the like--the principles the ratifiers understood themselves to be enacting. The remainder of the task is to apply those principles to unforeseen circumstances, a task that law performs all the time. Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges.

By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of "Don't ask, don't tell" admonition to would-be judges.

Bork, not known for rhetorical half-measures at any time, takes the gloves off in this piece. His essay drips with derision and anger at the way the Bush administration hung the Federalist Society out to dry during the Roberts nomination, and as the group's co-chair, he offers a rousing defense of its purity from partisan politics and its mainstream legal thinking. I wrote at the time that the White House made a mistake in its reaction to the "allegation" of Roberts' supposed membership in the pro-originalist group, but Judge Bork now believes that the slight was deliberate and intended to marginalize judicial originalism in favor of outcome-based activism.

For years, conservatives have tried to reverse the politicization of the Supreme Court by pushing originalism as a mainstream manner of getting the Court back into its Constitutional box. We know that a fair reading of the Constitution does not wind up producing a right to artificially abort unborn children for the sake of convenience, nor does it forbid the display of a cross during Christmas on city-owned property. It does not allow judges to create laws from emanations of penumbras; it requires the Legislature to create laws, and the Executive to enforce them.

That effort would have eliminated the need for overly politicized judicial confirmation processes such as the one that unfairly smeared Judge Bork in 1987, and all that have followed since. It would also have eliminated the need for so-called "stealth" candidates like the one that has gotten under Bork's skin in this article. That's the opportunity that George Bush let slip away with the Miers nomination, and that's why conservatives like Judge Bork have lost patience with him.

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Posted by Ed Morrissey at October 18, 2005 11:37 PM

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» Bork drops the gloves from hubs and spokes
Robert Bork is not happy with the Bush Administration: For the past 20 years conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that t... [Read More]

Tracked on October 19, 2005 2:17 AM

» Bush The II, 'Emperor of the Americas' from All Things Beautiful
"When the Democrats wanted Judge Roberts to spill his guts about every hot issue that might come before the Supreme Court, we cried foul and called for the application of the Ginsburg rule – insisting that he did not have to answer these questions. N... [Read More]

Tracked on October 19, 2005 6:23 AM

» The Federalist in the Closet from Chateau D'If
In today's OpinionJournal, Judge Bork sets forth his thoughts on the Miers nomination. Although Bork makes several good points it is his discussion of the impact of the nomination on young conservative legal-types (such as myself) that I find most co... [Read More]

Tracked on October 19, 2005 9:14 AM

» "Actively Hostile" from Daily Pundit
With his challenge to the idea Bush is a conservative, Bork joins key voices on the Right calling into question Bushs role as leader of the Republican Party. [Read More]

Tracked on October 19, 2005 11:14 AM

» RIGHT AND WRONGED from The Heretik
THE RIGHT CONTINUES to feel wronged by Harriet Miers [story] What more is left for Bush to do with the woman not quite right enough for the job? And what can Democrats do but laugh until they realize something [Read More]

Tracked on October 20, 2005 6:12 AM

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