From Bork to Kennedy

Judge Bork’s defeat is already history; we have since had the farce of Ginsburg’s downfall and have now the Kennedy nomination to worry about. But a second battle over Bork is under way—the battle over the best explanation of his defeat—and though I shall have to consider whether and why Judge Kennedy is a more attractive nominee than Bork was, the meaning of Bork’s loss is my central concern here. Judge Ginsburg’s destruction was sad, but it raised no issues of constitutional dimension. Of course it is absurd and embarrassing that his occasional use of marijuana several years ago while he was a law professor should be thought to have disqualified him. Smoking pot is and was illegal, and law professors should not break the law. But a professor who confessed that he broke the speed limit on occasion, or had once or twice driven after a few drinks, would not have been punished as Ginsburg was.

There were, however, more serious complaints against him. He was only a journeyman academic lawyer and had not shown any particular distinction in his brief career as a judge. He had used bad judgment as a deputy attorney general, moreover, in participating in a matter that might well have substantially affected his own financial interests. He should not have been nominated, but his unfortunate story is of no general importance beyond confirming what we already know about the hypocrisy and incompetence of the Reagan administration.

Bork’s defeat is another matter, and the argument about what really happened to him is likely, as I shall try to explain, to have serious consequences for constitutional law. We must distinguish between two aspects of that argument. The first is a question of explanation. What caused Bork’s defeat? How important, for example, was the fierce opposition of groups representing black voters? The second is a question of interpretation. What does Bork’s defeat mean? Did the American public reject Bork’s announced philosophy of original intention? If so, what alternative constitutional philosophy, if any, did the public endorse? These two very different questions are obviously connected, because we cannot intelligently consider the meaning of Bork’s defeat until we have some grasp of what factors actually caused it. So though my main interest is in the second, interpretative, question, I shall begin with the first.

When Bork was nominated last June, most commentators expected that although he would be opposed bitterly by a few liberal Democrats, he would nevertheless be confirmed fairly easily in the end. Relatively few Supreme Court nominees have been rejected, even when the Senate was controlled, as it is now, by a party opposed to the President’s. Everyone seemed agreed that a president may name justices to suit his constitutional views, and that the Senate may properly reject his choice only if it is dissatisfied with the nominee’s personal integrity or competence. Since no evidence appeared to discredit Bork personally, and since …

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