Wednesday, October 19


Robert H. Bork -- Ronald Reagan nominee to the SCOTUS in 1987 and turned down by the Senate voted out of the Senate Judiciary Committee in a 58-42 vote after heated, acrimonious, thoroughly politicized confirmation hearings -- has written a "must read" piece ("Slouching Towards Miers") for today's edition of the "Wall Street Journal" (registration required for " OpinionJournal").

He wastes no time in identifying the salient consequence of President Bush's confounding decision to nominate a cipher:

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.

He sees no need for expending much mental energy in identifying the Bush administration's defense of the Miers' nomination for what it is:

The administration's defense of the nomination is pathetic: Ms. Miers was a bar association president (a nonqualification for anyone familiar with the bureaucratic service that leads to such presidencies); she shares Mr. Bush's judicial philosophy (which seems to consist of bromides about "strict construction" and the like); and she is, as an evangelical Christian, deeply religious. That last, along with her contributions to pro-life causes, is designed to suggest that she does not like Roe v. Wade, though it certainly does not necessarily mean that she would vote to overturn that constitutional travesty.

To the president's belated, pitiful effort at shoring up his choice of a crony with his fractured, near-revolt, conservative base by headlining Harriet Miers' evangelical Christian credentials, Bork responds:

Reliance upon religious faith tells us nothing about how a Justice Miers would rule. Only a commitment to originalism provides a solid foundation for constitutional adjudication. There is no sign that she has thought about, much less adopted, that philosophy of judging.

Mr. Bork then drives toward the heart of the issue -- the reason, to be sure, why so many right-of-center bloggers, like me, are unnerved over the president's choice:

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.

He continues:
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. It is a blow in particular to the Federalist Society, most of whose members endorse originalism.

Precisely, Mr. Bork. Why develop a proverbial farm team of first-rate originalist judges on the federal bench only to have the president opt for a personal friend, former personal attorney, and current White House insider? What happened to the president's campaign promise to his base -- namely, that if given the opportunity(s), he would nominate SCOTUS candidates in the Scalia-Thomas mold?

Next, and finally, Robert Bork takes dead aim at those "moderate (i.e., lukewarm) conservatives" who have exhausted themselves in their 24/7 apologia denigrating fellow conservatives who have rightly challenged the Bush administration to shore up its sagging conservative credentials:

Finally, this nomination has split the fragile conservative coalition on social issues into those appalled by the administration's cynicism and those still anxious, for a variety of reasons, to support or at least placate the president. Anger is growing between the two groups. The supporters should rethink. The wars in Afghanistan and Iraq aside, George W. Bush has not governed as a conservative (amnesty for illegal immigrants, reckless spending that will ultimately undo his tax cuts, signing a campaign finance bill even while maintaining its unconstitutionality). This George Bush, like his father, is showing himself to be indifferent, if not actively hostile, to conservative values. He appears embittered by conservative opposition to his nomination, which raises the possibility that if Ms. Miers is not confirmed, the next nominee will be even less acceptable to those asking for a restrained court. That, ironically, is the best argument for her confirmation. But it is not good enough.

As a blogger who writes extensively about illegal immigration and the national security implications of our nation's porous borders, I was particularly heartened by Robert Bork's acknowledgment that "amnesty for illegal immigrants" is among the core issues that are pushing many in his "base" away from the president in what Bork terms a "fragile conservative coalition" on social issues. I couldn't agree more.

Again, President Bush made a campaign commitment to his conservative base that he would champion nominees to the SCOTUS in the Scalia-Thomas mold. What went unsaid because of practical political considerations is that the "Scalia-Thomas mold" was meant to include in the Robert Bork mold as well, as conservatives have long memories of how this eminent jurist's nomination was destroyed by Senate Democrats and heretical RINOs.

If Bork is unimpressed by Harriet Miers, for some of us that's all the litmus test that is needed.

FOLLOW-UP: Hugh Hewitt's is the "unpersuasive" argument, not Robert Bork's, and Mr. Hewitt has no business whatsoever applying the adjective "intemperate" to the Bork column given his own raging taunts (some of which he has subsequently apologized for) hurled against those bloggers disconcerted over Bush's pick.

FOLLOW-UP II: Read this from Professor Bainbridge, please.