I miss Robert Bork.
Not his judicial philosophy or what, in my opinion, were often extreme, out-of-context interpretations of statutes and constitutional provisions. No — I miss his candor, his willingness to stand by his ideas, his admission that he wanted to sit on the Supreme Court because it offered an unparalleled “intellectual feast.” In short, his sense of honor in acknowledging who he was and what he believed.
It’s often said that Bork’s honesty cost him a seat on the Supreme Court in 1987. In the years since, judicial nominees have taken predictable steps to avert the same fate: water down controversial views or distance yourself from them; refuse to voice opinions about legal principles or decisions; drone on about your respect for precedent — especially in those areas of the law that matter most to the senators of the opposing party. And eliminate references to feasts of any kind (intellectual, movable or otherwise) and emphasize how humbled and humble you’d be if given the honor of serving.
These absurdities reached their highest expression in the confirmation battle involving Goodwin Liu. A legal wunderkind, Liu was nominated by President Obama to a seat on the California-based federal appeals court. He has a long track record of academic musings in which he pushes breathtakingly liberal approaches to the law. He has argued, for example, that courts may “legitimately foster evolution of welfare rights” and urged judges to determine whether certain benefits and services have become so deeply ingrained in American life as to warrant constitutional protection.
Liu swore under oath that he could be “an impartial, objective and neutral arbiter of specific cases and controversies.” But I can’t blame Republicans for wondering whether they were being sold a bill of goods. Is it really believable that a man who spent virtually his entire academic life pushing liberal orthodoxy would suddenly set all of these ideas and instincts aside the moment he dons judicial robes? Isn’t it more likely that the lifetime appointment that comes with confirmation would embolden rather than humble Liu in pursuit of such theories? (Liu’s possible Supreme Court ambitions would, to my mind, be more likely to keep him in legal equilibrium.) In trying to make himself more palatable, Liu may have done irreparable harm. Politicians may not be the most honest folk, but little sets them off more than the sense that they’re being stonewalled or hoodwinked.
Liu’s vitriolic attack on then-Judge and Supreme Court nominee Samuel A. Alito also did not serve him well. Liu blasted Alito, for example, for “envision[ing] an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse.” Liu tried to assuage critics by saying that the remarks were “unduly harsh, provocative and unnecessary.” But his critique of Alito wasn’t extemporaneous; the words were carefully chosen for maximum impact and presented before a panel of senators weighing Alito’s Supreme Court nomination. At the least, Liu is guilty of bad judgment in turning what should have been a sober analysis of Alito’s record into a distorted and personal attack.
I still would have given the well-credentialed Liu the chance to serve on the appeals court — especially because his decisions would be subject to a check by the Supreme Court. But that proposition is moot at the moment, since Republicans on Thursday blocked Liu’s nomination through a filibuster.
Those on the left have been howling since, especially because Republicans screamed when Democrats used the same tactic on Bush nominees. Both sides are wrong: Republicans and conservatives were hypocritical in pulling out the filibuster, but Democrats have no right to act high and mighty when they were the first to use the filibuster to defeat well-qualified Bush nominees. Democrats claimed the brilliant and conservative Miguel Estrada; unless the Obama administration steps up to do more than it has thus far to support Liu, the Republicans may soon have their own trophy to mount in the halls of Congress.
Here’s a radical — and admittedly naïve — proposition: What if nominees spoke truthfully about their record, speeches and judicial philosophies? What if outside interest groups stopped mangling nominees’ records beyond recognition? What if senators, having been shown respect by honest nominees, eschew “gotcha” questions and litmus tests and instead focus on the nominee’s grasp of the law, credentials, experience, character and intellectual ability? What if senators gave the president his constitutional due and confirmed well-qualified and ethically clean nominees who share his views on the law?
Some nominees may still suffer the fate of Robert Bork. But at least they’d go down with honor.