Robert Bork on Fallout from Miers Withdrawal

Judge Robert Bork
Former Supreme Court Nominee
Friday, October 28, 2005; 11:00 AM

Judge Robert Bork, a former Supreme Court nominee, was online Friday, Oct. 28, at 11 a.m. ET to discuss the fallout from Harriet Miers's withdrawal of her nomination for the Supreme Court. Bork was President Ronald Reagan 's nominee in 1987 and is currently a fellow at the Hudson Institute and author of "Slouching Towards Gomorrah: Modern Liberalism and American Decline," and, in 1989, "The Tempting of America: the Political Seduction of the Law."

The transcript follows.


Philadelphia, Pa.: Judge Bork, what is your opinion of Ms. Miers' qualifications for Associate Justice of the Court? Do you agree with the conservative elites who argued that she was totally unworthy of the job, or do you think that she is yet another victim of the overly politicized nomination process? Shouldn't the Senators have withheld their judgments for the confirmation hearings?

Robert Bork: I don't think she was qualified for the job. She has many praiseworthy attributes, but knowledge of constitutional law isn't one of them. I think she was unqualified and she didn't have time to learn anything about constitutional law before the hearings and we've had enough of Justices who've gone to the Court with no particular notion of what the law is about and are swayed by personal attitudes. I don't think it was a question of conservative elites. Conservatives were certainly upset by the nomination, but many Democratic Senators were equally opposed to it.


Ithaca, N.Y.: In your judgment, who are the three most desirable persons that Bush should consider nominating to fill the Supreme Court vacancy?

Robert Bork: I haven't got a list of three, I've got a list of about eight and I can't very well pick three from that group. Ted Olson, Raymond Randolph, a judge on the D.C. Circuit Court of Appeals, Frank Easterbrook (also a Court of Appeals judge), Michael Luttig, Jay Harvey Wilkinson, Edith Clement, and Edith Jones. There's also Samuel Alito.


Bethesda, Md.: Judge Bork,

As a conservative, I was very relieved that Harriet Miers's nomination was withdrawn (especially since Harry Reid recommended her). In your opinion, how likely is it that President Bush will appoint a conservative and strict constructionist to the bench? Does he have to appoint a woman?

Robert Bork: No he doesn't have to appoint a woman. It's unfortunate that we get into this business of trying to balance the Court with ethnic groups or sexes. If he wants to divide his conservative support he'd better nominate a judicial conservative. A judicial conservative is not necessarily politically conservative, but believes in sticking to the actual Constitution as it was understood by those who made it law rather than amending the Constitution from the bench.


Reston, Va.: Have the conservatives fully examined the political and social consequences of overturning Roe v. Wade? Would such a judgment from the Supreme Court intensely divide the country?

Robert Bork: The country is already intensely divided by Roe v. Wade. Roe v. Wade polarized the country in a way that it was not polarized before that decision. Since it is completely illegitimate constitutional law, I think that it should be overturned and abortion should be returned to the judgment of the people.


Windsor, Ontario, Canada: Mr. Bork, thank you for taking questions.

How does one evaluate a Court nominee who is not especially articulate, has no paper trail and virtually no trail of any kind? While she might have made an excellent Justice, I would prefer that this conclusion be based other than on assurances from her friends and colleagues, even if one of them is the President.

Robert Bork: Well, that's true-I think it's important to have a paper trail that shows what you are getting. On the other hand, having a paper trail makes you vulnerable to political attacks and even distortion of what it is you believe.


Washington, D.C.: Sir, I saw you last night on Larry King advocating for President Bush to appoint a right-wing conservative to the bench to replace Sandra Day O'Connor. Don't you think the country would be better served by a candidate who the whole country can support, not just the right wing of the Republican Party? What ever happened to national unity?

Robert Bork: I don't think the question is whether the candidate is like a politician who can bring the country together. The question is whether a candidate respects the actual Constitution. A candidate who does that is not a right-wing extremist.


Washington, D.C.: Judge Bork, a great deal was made at the time by conservatives of the idea that your nomination to the court was blocked for ideological reasons, contending that this was not a legitimate reason to reject a Supreme Court nominee. With the Miers "withdrawal," is this idea now moot? Is it now completely acceptable to challenge a nominee for solely ideological reasons?

Robert Bork: It depends on what ideological means. I think it is legitimate to question a nominee that does not display a coherent and sound judicial philosophy, but since the Court has now made itself into a political institution you can expect political warfare to rage about nominations. A political court is a valuable prize for politicians and that ought not to be the way we view the court or the way the court behaves.


Green Bay, Wis.: Executive Privilege is a very important part of any Presidency and the Senate Judiciary Committee's need for a paper trail and judicial writings of a Supreme Court nominee is just as important.

Why would any President nominate someone whose record was protected under Executive Privilege?

Robert Bork: That would eliminate a lot of past Justices to the Court who had experience in government and whose records were not turned over. It's not just a question of executive privilege, it's governmental privilege. If you try to get the papers by a committee of the House or the Senate that they're trying to keep confidential, or if you are trying to get memoranda showing the deliberations of judges on the court, you would find that those are protected by privilege also. It's a governmental privilege, not just an executive privilege.


Silver Spring, Md.: I don't need to tell you Supreme Court nominations have become exercises in partisan hyperbole. Amid the chaos, given the Senate's fiduciary responsibility in the confirmation process, what are the legitimate/critical issues that Senators should address when questioning a nominee?

Robert Bork: I think they should be questioning the nominee's philosophy of interpreting the Constitution. That does not necessarily mean getting opinions on how they would vote in certain cases but asking questions about what materials the nominee would look to in deciding Constitutional cases and what his or her views are on a Constitution whose principles remain the same, or a Constitution whose principles should be added by judges. A nominee who would add new principles, which can only come from his or her personal philosophy should be rejected.


Washington, D.C.: Judge Bork:

What in your opinion was really the issue in the Miers nomination-lack of experience, personal impression, lack of a judicial philosophy? What really caused the meltdown? She seems like a person who could have handled the job.

Robert Bork: The meltdown I think from a lot of people came because she had no particular evidence of any judicial philosophy or any familiarity with constitutional law. That being the case, it seems highly unlikely that she would be able to handle the job.


Manington, W. Va.: How can you say the Harriet Miers does not have "knowledge of constitutional law". In her current position doesn't she have to deal with constitutional issues on a daily basis?

Robert Bork: I doubt it. There is a section of the Department of Justice called the Office of Legal Counsel, which gives Constitutional advice to the President and that advice is probably examined by the staff of the White House Counsel. But the Counsel themselves are unlikely to do any research or original thought about the Constitution. Moreover Ms. Miers was only White House Counsel for a short period of time, well less than a year.


McMinnville, Ore.: What would be the one key question you would ask the next Supreme Court nominee if you were a Senator and she came before you at the hearings?

Robert Bork: I would ask whether the nominee thought that the principles of the Constitution as they were understood by those who made the Constitution law would control the nominee's vote. The Constitution evolves in a legitimate way when those principles are applied to legitimate circumstances. The Constitution evolves in an illegitimate way when the judge begins to add new principles, such as the right of privacy, which gave us Roe v. Wade and a number of other decisions that are more in keeping with elite opinion than they are with the Constitution itself.


Chicago, Ill.: Is it possible that the Miers withdrawal will embolden Democrats and New England Republicans to band together against the next well-qualified originalist or conservative nominee?

Robert Bork: I think it's highly likely that the northeast Republicans and quite possibly Sen. Specter will band together against a nominee that might be suspected of wanting to overturn Roe v. Wade. The northeast Republicans are often called moderates. They are in fact Democrats, if not in name, certainly in substance.


Anonymous: In an earlier interview on MSNBC's Hardball you predicted that if the Miers nomination was lost, because of opposition from the right, that President Bush would, "stick it in the eye of the right wing" by nominating a moderate/liberal. Do you still feel that way?

Robert Bork: I think it is a distinct possibility, but if he does that he would fracture his conservative support, which is something he can ill-afford to do right now.


Clarendon, Va.: So much of the controversy over the next justice (just as was the case with your nomination) turns on how people really understand what the implications are of "overturning Roe v. Wade." That is, Roe v. Wade was less about legalizing abortion in and of itself, than it was removing the decision about abortion rights from the purview of state governments.

Does the apparent lack of clarity on that very important distinction hamper our ability to really ascertain what a prospective justice thinks on the issue?

Robert Bork: It is difficult to get across to many Americans that overturning Roe v. Wade does not make abortion illegal, it merely returns it to the state legislatures and ultimately to the people, where it was for all of our history up until 1973.


Grand Rapids, Mich.: A few years ago I learned from a source close to Senator Biden that a concerted plan was put together to torpedo your nomination. Were you aware of that - at the time, or later - and do you think the same thing happened to Harriet Miers?

Robert Bork: No, I wasn't aware of the fact that Biden was holding meetings with academics opposed to me to try plot a strategy. I became aware of that after the hearings were over. I don't think there was any such hidden plan to oppose Harriet Miers. The opposition, on the contrary, was very much out in the open.


Washington, D.C.: What fraction of the Supreme Court's case load is constitutional law? Sure, the ideologues on both sides care more about that than about various statutory issues, but aren't issues of statutory construction a larger part of the case load? Maybe we are biasing the Court the wrong way with all this emphasis on what a nominee's track record is on constitutional issues. Maybe judges whose focus has been on other issues would do a BETTER job on constitutional issues, coming to those issues fresh.

Robert Bork: Anybody who comes to constitutional issues fresh will be lost intellectually at once. It is not a subject that is mastered in a short period of time, and being on the Court is no place to try to master it. Constitutional issues may not make up most of the Court's work but they are the crucially important aspects of the Court's work because they are very powerful in shaping our culture and our sense of morality.


Washington, D.C.: Were the Senate document demands for attorney-client privileged documents fair or unfair particularly since those demands were not made of John Roberts or further in the past even William Rehnquist while at Justice?

Robert Bork: The demand for documents has become a tactic in opposing a nominee. They get thousands and thousands and thousands of pages that have nothing to do with the issue of confirmation but are an attempt to find something that can be distorted or used to oppose a nominee. The confirmation process has gotten out of hand in this respect, as in many others.

_______________________ Thank you all for joining us today.


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