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Why Judge Bork Was Rejected

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Sunday, June 7, 2009

In his otherwise enlightening piece on shepherding Supreme Court nominees through the confirmation process ["How to Scale the High Court," Outlook, May 24], Tom Korologos suggested that Judge Robert H. Bork's nomination was defeated because Judge Bork was simply too conservative. This is revisionist history.

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As demonstrated by the fact that Justice Antonin Scalia was overwhelmingly confirmed by essentially the same Senate, the fatal flaw was not Judge Bork's ideology or any of the other factors Mr. Korologos mentioned. Rather, two substantive drawbacks emerged in the confirmation process, both relevant to the looming battle over Judge Sonia Sotomayor's nomination.

The first was Judge Bork's failure to apply any judicial philosophy consistently; instead, how he would rule as an appellate judge could largely be predicted by who the parties were. Judge Bork almost always ruled for the government in actions brought by consumer, environmental and civil rights groups. Yet in cases brought by business interests against federal agencies, he would often abandon his purported commitment to judicial restraint and invalidate government action.

The second drawback -- exemplified by Judge Bork's famous statement that serving on the Supreme Court would be an "intellectual feast" -- was the notion created by his testimony that justices' primary role is to wage a war of intellect and ideology divorced from any concern for the real-world impact of their rulings.

There is a valuable historical lesson from the Bork battle, but it is not the one Mr. Korologos suggested. Rather, it is that any judicial record should be scoured for consistency and not merely ideology and that "intellectual feasts" should be pursued by academics, not life-tenured jurists with enormous power over the lives of millions.

ERIC R. GLITZENSTEIN

Washington


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