RE: Bork/Judicial Appointments

From: Andrew J. Weill <aweill_at_vbG8WA4WXA8asrwUfMSJ8HwgGRwH4-_eMd8HjbuheLTZ3HuFGj3uOwpMwXB-ULVetFATl>
Date: Wed, 15 Oct 2003 15:19:14 -0700


Chris Lemens posted:

"Fine, they're not literally unprecedented. Your'e
rihgt. There are several cases before WWI and one after."

No, you're ignoring my earlier post. Post-WWII, there have been confirmation battles over Supreme Court nominations other than Bork. In particular, Nixon's nominations of Haynesworth and Carswell were rejected. In both cases, the nominees had segregationist or white supremacist writings or conduct in their backgrounds, which led to challenges to their suitability for the Court. Of course, at this time the issue was the status of Brown v. Board of Education; many were concerned that these appointments might be used to set back advances made in civil rights. Ironically, the Justice actually appointed was Blackmun, who would go on to author the current focal point of controversy in judicial appointments, Roe v. Wade.

The background of Nixon's appointments of Haynesworth and Carswell is worth noting, because it shows that the current malaise of overpoliticization of judicial appointments is really attributable to Nixon. (I admit that I am generally willing to attribute virtually every political evil to Nixon, but in this case I actually have authority.) White House aide Tom Charles Huston, in a 1969 memorandum to Nixon, noted that judicial nominations were
"perhaps the least considered aspect of Presidential power. . . . In
approaching the bench, it is necessary to remember that the decision as to who will make the decisions affects what decisions will be made. That is, the role the judiciary will play in different historical eras depends as much on the type of men who become judges as it does on the constitutional rules which appear to [guide them]." Huston therefore urged Nixon to set specific criteria for the types of judges to be nominated (a litmus test) in an effort to influence judicial policymaking. If the president “establishes his criteria and establishes his machinery for insuring that the criteria are met, the appointments will be his, in fact, as in theory.” A memo from Nixon’s Chief Domestic Affairs Adviser, John Ehrlichman, that transmitted a copy of Huston’s memo to the president said: “Huston’s memorandum is well done and raises some interesting points.” Underneath, Nixon added a handwritten note: “To [Deputy Attorney General Richard] Kleindienst: RN agrees. Have this analysis in mind when making judicial nominations.”

Back to Chris:

"I don't see how you can disagree that the Democrats
went out to block Reagan's, then Bush Sr.'s, Supreme Court nominees, and then the Republicans followed suit with Clinton's. This was not the pattern since WWII--we did not have intense partisan fights over the Supreme Court, and certainly not over the Courts of Appeal."

See above. I disagree. Battles over judicial appointments well predated Reagan. Also consider the defeat of Abe Fortas' nomination by Lyndon Johnson as Chief Justice, which was premised on both valid grounds (he repeatedly failed to keep himself out of politics while a justice) and invalid grounds (he was Jewish). My point, again, is that it is a myth that battles over Supreme Court appointments began with Bork. Simply not true.

Chris goes on to state:

"No, it is not. They justify their ideological
opposition on ideology, just as the Democrats do. My point is that neither side was doing this before Bork, that Republicans view it as tit-for-tat, and that there is a good basis for this belief."

See above. I think you are playing semantic games with the word
"ideological." Haynesworth and Carswell were opposed because of
segregationist/racist issues in their backgrounds, which created concern about their suitability for the Court. Is this "ideological" opposition? I suggest the real issue is whether the criteria used to oppose the nominee is relevant or irrelevant. As to Bork, the opposition was based upon his published writings indicating a belief that government legislation regarding nondiscrimination was an unconstitutional infringement of freedom. Many people question whether such an attitude is appropriate for a Supreme Court justice. If this is "ideological" opposition, so be it. I consider it a basic issue of qualifications to serve on the highest court.

Chris also said:

"What his beliefs were or were not was beside the point
entirely. We were discussing the dynamics of using constitutional mechanisms that are available, but inadvisable, especially if they are used frequently. The tit-for-tat that our political parties engage in concerning the judiciary is a perfect case in point. And it started with Bork."

I disagree. You said -- and continue to say -- that something unique happened to Bork. I say that it was not unique: he was challenged and rejected for views which were considered disqualifying for the high court. His beliefs are not beside the point; they are the point. And he is far from the first justice to be challenged, and rejected, because of his stated beliefs.

Chris again:

"What crap. The opposition was based on ideological
beliefs contrary to those Bork held -- that strict constructionism is wrong, that there should be a freedom to have an abortion, etc. Those are certainly principled positions, but they are entirely ideological and partisan."

Many, many of us who oppose Bork think that his views of "strict constructionism" are highly suspect. The issue, of course, is how one goes about the strict construction, and what one looks at to do so. Many critics have noted that Bork's views on these issues are far from the usual consensus of the evolution of constitutional law. Suffice it to say that, under Bork's rationale, virtually every major decision of the John Marshall court could be overturned. Moreover, you ignore the issues that I quoted earlier: Bork's belief that nondiscrimination in public accommodations is an unconstitutional infringement on liberty, and his belief that the modern ills of society are attributable to the liberal activism of the 1960's. Again, I think you may be playing with the word "ideological" here. My point is that these challenges are legitimate challenges which go to the merits of whether one should be elevated to the Supreme Court or not. Whether this is "ideological" or something else seems rather beside the point.

Chris again:

"I personally thing that his

views, as one of nine, would have been useful on the court, in order to bring a srutiny that was missing for some time there. Scalia fills this role pretty well for me. I would worry if his views were five of nine."

I agree that Scalia is a profoundly gifted constitutional scholar. While I deeply differ with much of his judicial philosophy and decisions, I readily concede that he primarily bases his position on intellectually respectable grounds. But the difference between Scalia and Bork is enormous. Frankly, I can't picture Scalia challenging the Public Accommodations law or agreeing to fire Archibald Cox. But I could be wrong.

But Scalia's appointment counters your argument. He was approved despite the considerable ideological differences between him and the centrist Democrats.

Andy Weill            

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