The Real Lesson of Bork

I come at this from a unique perspective because I am one of these freak judicial conservatives. I think Roe is comically wrong. I don’t even believe in the Miranda warnings.
This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email.

The lesson people seemed to have taken away from the Robert Bork hearings was that you cannot be confirmed as a Supreme Court justice if you tell the Senate your real views. That is patently untrue. You only have to avoid telling the truth if you are a conservative jurist. That is because the country does not agree with the conservatives.

Liberal and moderate justices can say, and have said on numerous occasions, that they believe in Roe v. Wade, a woman’s right to choose and the right to privacy. They can state these views with impunity because that is what the American people believe. No nominee is going to be denied a seat on the Supreme Court for believing in these principles.

What we found out when Robert Bork was nominated to the highest court was that you cannot be confirmed if you believe the opposite. Judge Bork told us honestly that he did not believe in Roe or the right to privacy. He did not get defeated for being honest and forthcoming – he was defeated because his views are solidly outside the mainstream.

The conservatives spun this event into an indictment of candor because the real implication is too unfathomable for them – Americans do not agree with the conservative point of view. We do want a right to choose and we do want a right to privacy.

Name one liberal or moderate judge who has ever been rejected from the Supreme Court because they were outside the American mainstream. There aren’t any. I suppose a judge could be too liberal for the Supreme Court, but no one has even approached this theoretical barrier. On the other hand, Republican presidents play hide and go seek with their nominee’s points of view on a consistent basis because they are afraid Americans will be scared off by what they really believe.

I come at this from a unique perspective because I am one of these freak judicial conservatives. I have attended Federalist Society meetings, as John Roberts did. I think Roe is comically wrong (constitutionally speaking, it would have been excellent legislation). I don’t believe the constitution outlines a broad right to privacy. It is quite specific as to what kinds of privacy rights you are entitled to in the Bill of Rights. I don’t even believe in the Miranda warnings.

On a policy level, I think the privacy rulings would make for great legislation. Do I think Americans should have the right to have birth control? Of course. I think we should have the courage to pass those laws or amendments through Congress, as the Framers intended. To pretend the constitution speaks about birth control or trimesters is disingenuous.

But I recognize I am in the minority. Most Americans wouldn’t want me on the Supreme Court. And if they realized that most of the conservative judges nominated feel the same way as I do, they would also reject them. But instead we play hide and seek.

This purposeful obfuscation inevitably leads to mystery picks like Harriet Miers. Supreme Court justices shouldn’t be like a box of chocolates, we should know what we’re going to get inside.

Miers was picked for a couple of reasons. The first is undying loyalty to President Bush, which is the main qualifier you have to have to get any important government job these days. According to former Bush speechwriter David Frum, she called the President “the most brilliant man she had ever met.” You have to be either a gigantic liar or a gigantic fool to believe that. Or, as with Ms. Miers, you have to be a professional ass-kisser.

But her other qualification was that she didn’t have other qualifications. She has done nothing that would indicate her true beliefs – the perfect recipe for a conservative judge you want to sneak on to the court. This is getting absurd.

Harriet Miers is perfect because she hasn’t even been a judge. No opinions on the record on anything. It was one thing when brilliant minds like Earl Warren, the Governor of California moved on to the Supreme Court without being a judge. But Miers was the President’s Staff Secretary from 2000-2003. She was in charge of the paper work that came into the Oval Office. That’s one of the top nine legal minds in the country? That’s one of the nine most experienced and qualified judges in the country?

Soon, they will be nominating people right before they go law school to make sure they don’t even have any legal exams or papers that could be scrutinized. This whole process has become a sham. It’s a race to the bottom to find the least qualified, least experienced candidates.

This is part of the reason true believers on the right are upset. They now realize the President is embarrassed of them. He cannot pick one of their intellectual stalwarts because the administration realizes the American people don’t agree with the conservative movement. This has to be a painful moment of reckoning for the right. They will never get any of their true, principled legal scholars on the court. The best they can hope for is people who are so unqualified for the job that they might be able to trick the American people into thinking they are moderates.

No wonder the right was more upset than the left at the news that Harriet Miers would be the next nominee to the Supreme Court. It is a final admission that the right has lost the intellectual battle for American hearts and minds. Their only hope now is the feeble, the taciturn and the unqualified.

Go To Homepage

Popular in the Community