The New Supreme Court Justice: How Bad Can the Process Be?

With the announcement of David Souter leaving the court, President Obama has the duty to appoint a new member to one of the most exclusive clubs in the country. As speculation swirls, history could be made. With only Ruth Bader Ginsburg as the only female on the bench, odds are it will be another female candidate. The leading name is Sonia Sotomayor – a Federal District Court Judge appointed by Clinton. Other names bandied about include: Ellen Kagan and Kathleen Sullivan. With the Democrats controlling the Senate, Obama’s appointee will most likely sail through. In years past, Supreme Court Confirmation hearings have at times been the modern version of Bread and Circuses. One such hearing was that of Robert Bork.

The Bork hearings were so bad, so divisive, that a verb was created: Borked. Reagan had said of Bork, ” Judge Bork is recognized by his colleagues and peers as a brilliant legal scholar and a fair-minded jurist who believes his role is to interpret the law, not make it.” While that may have been true, Bork’s own opinions on a number of issues torpedoed any hope he had of being on the court. In what has been called “Originalism”, Bork is pretty close to a strict constructionist. If it is not in the Constitution, then it is not within the purview of a judge to be an “activist” judge. Bork felt that a judge should remain neutral at all times.

Among the decisions that Bork has blasted as groundless and unconstitutional: a seminal 1948 decision, Shelley v. Kraemer, that denied state courts the authority to enforce racially restrictive agreements between sellers and buyers; Griswold v. Connecticut, which in 1965 struck down a state law forbidding the use of contraceptives even by married couples; the 1973 Roe v. Wade ruling that extended the right of privacy to protect abortion; and the 1978 Bakke v. University of California decision that permitted affirmative action, though it disallowed strict racial quotas. Those rulings have reshaped American life — which is precisely Bork’s complaint. He accuses the recent court of liberal “judicial activism,” using its power to accomplish social goals that have eluded — or been opposed by — legislatures. His own philosophy, he claims, is based on fealty to “neutral principles,” the notion that judges should not formulate their legal principles based on the outcome they will produce in the particular case being heard. 1

Judiciary Chair Joe Biden, along with Ted Kennedy, lead the Senate in bringing down Bork by painting a picture of segregation being reinstated along with back alley abortions.

The end of Bork’s hearing was not the end of Bork however. He has written many books which have had an influence on the conservative thought of Scalia, Roberts, and even Clarence Thomas. While, Bork may not have had his nomination approved by the Senate, his influence on the modern court is ever present but it could be waning. And yes, he is still alive.

In the coming years, many of the Justices on the Supreme Court are approaching the end of their life terms. Roberts, whilst only in his 50s, has health issues. If given a chance, Obama’s greatest legacy could be the remaking of the Supreme Court. If somehow, Obama is re-elected in 2012, the chances double and the days of the conservative court will slowly fade for another 20 years.

1- Lacayo, Richard. “The Law According to Bork”. Time Magazine: September 21, 1987.


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