There is no better public commentator on Supreme Court affairs than Linda Greenhouse. Her March 18 response to the Republican Senate obstruction of President Obama’s Supreme Court nominee is compelling: “Bring on the new Bork battle.”
Essentially, her plea is do unto President Obama’s Supreme Court nominee, Judge Merrick Garland, as the Democrats did 29 years ago unto Judge Robert Bork. She rightly scorns the bogus contention that the Bork nomination fell to a “filibuster.” She is also right in observing that the nation’s highest court is usually in quest of a constitutional “center,” a consensus that evolves through the years.
However, her plea for a replay of the Bork affair goes more than a step too far. Bork’s nomination was venomously attacked on political and ideological grounds. Bork’s chief Democratic foes turned the Bork hearings into an exercise in abortion politics and a gross caricature of fair play. She doesn’t deal with the resulting distortion of legal and constitutional issues. An old friend of mine who then served as Edward Kennedy’s chief of staff told me when the smoke cleared: “For you, the Bork affair was a constitutional debate. For us it was World War III.”
True to his outlook, whose essence was judicial restraint, Bork was lured into an unwinnable political war. He fought with facts and reason; his foes, with smears. As a serious judge, Bork knew that Roe v. Wade hinged on a dubious precedent – a decision establishing a supposed right of “sexual privacy.” As a serious adherent of the words of the constitutional text, Bork knew that the court had discovered a “right” that existed nowhere.
Those who believe – as I am sure Greenhouse doesn’t – that courts should act as benches of free-floating philosophers and ratify popular attitudes on the issues of the day will applaud the Republican position on Garland. Majority Leader Mitch McConnell’s excuse for suspending the constitutional process is that in an election year voters deserve a “voice” in the choice of justices.
American voters do indeed have a choice – not to treat judicial nominees as if they were as inconsequential as candidates in a dogcatcher election. The real choice is whether the courts shall function under the discipline of the Constitution and the law or as political bodies indistinguishable from the cowering slaves of McConnell’s Senate caucus.
Edwin M. Yoder
The length limit was waived to permit a fuller discussion of the issue.