Just noticed this very odd response by Mark Olson to my post about Robert Bork’s mythical martyrdom. Much of the rhetoric in Olson’s response would serve as a perfect example of how to execute the strategy known as poisoning the well, as he puts his own unique characterizations on events and pretends that I have said them or would agree with them. It begins with the very first sentence:
Ed Brayton, writing at Dispatches from the Culture Wars, is of the decided opinion that it was a good thing that Mr Bork’s reputation was besmirched by the Judicial Committee.
Uh, no. I am, however, of the decided opinion that this characterization of my decided opinion is shamefully disingenuous. I didn’t say anything about Bork’s “reputation being besmirched”, I said that Bork’s views really were and are dangerous to liberty and that he was rightfully voted down in his attempt to get on the Supreme Court. If his reputation was besmirched by the fact that he had regularly written opinions on con law that can only be described as loony and dangerous, I don’t much care about that. It is the fact that those opinions are loony and dangerous that I addressed and that is all. Olson continues:
So, in this case, Mr Brayton argues first that the ends do indeed justify the means, that using extra-Constitutional means to destroy the reputation of man is worthwhile if he might be put in a position of power, while not holding “mainstream” views.
Same disingenuous rhetoric, take two. I know of no “extra-constitutional means” that were used to “destroy the reputation” of Bork. I know that he was voted down and I believe he was voted down for good reason, not merely because his views were “out of the mainstream” but that they were dangerous to the cause of liberty and wholly unsupportable. I went into great detail in my post as to why I believed that, quoting several of Bork’s own writings to support my conclusion. Mr. Olson apparently believes that it is fair or reasonable comment to ignore all of the substance and instead pretend that I have agreed that it’s okay to destroy someone’s reputation by extra-constitutional means…whatever the hell that means. Do I sound irritated? Good, because I am. Nonetheless, I will answer the questions that Olson posed for me:
It has been pointed out that public writings by jurists do not always track with their court rulings, as in courts they are constrained by law and stare decis but in public opinion pieces there is no such constraint. Is there any actual proof that Mr Bork would ignore such matters if he was approved. Perhaps he could point out why he feels that way based on Mr Bork’s prior opinions in the court on record?
I would say this objection is relevant when discussing a lower court judge, who are bound to apply Supreme Court precedent. For a Supreme Court justice, where there are no such boundaries, I think it is perfectly reasonable to believe that when they say “This is the only reasonable interpretation of this constitutional provision”, they will then follow that interpretation when sitting on the court should a case arise that deals with the subject. Certainly for Bork, who is incredibly outspoken in maintaining that one must follow his version of originalism or they are betraying the founders and the Constitution they wrote, regardless of the mistakes made by past courts, what possible other basis could one have? When he argues that there is no constitutional basis for protecting any speech other than explicitly political speech, what possible reason could we have to think that this is not how he would vote on the court? There are situations where one can surmise that what a judge has written does not necessarily reflect their actual views. An opinion on a lower court might only reflect his duty to apply precedent regardless of whether he agrees with it; briefs written for a client may only reflect the best argument that could be made for his client’s position and not his real opinion. But when he writes that his own view is X and that this is the only rational way a judge could interpret the constitution, it would be irrational not to take him at his word.
He thinks we dodged a bullet by not nominating Mr Bork. However, Justice Thomas was nominated in Mr Bork’s place. On how many decisions does he truly think that Thomas and Bork would have greatly differed? Of course if the number is not substational then we have not indeed doged any bullets and those who “Borked” Mr Bork wrought great havoc on the process for no gain.
This is wrong on the face of it. Thomas was not nominated in Bork’s place, Anthony Kennedy was nominated in Bork’s place. Clarence Thomas was nominated to replace Thurgood Marshall. Bork and Kennedy are about as different as night and day. Certainly there would have been no Lawrence decision with Bork on the court instead of Kennedy. As far as Thomas and Bork are concerned, there are significant differences between the two of them as well. Thomas believes, correctly in my view, that the Declaration of Independence is a key document for determing constitutional interpretation because it so eloquently defines the limits of legitimate government that the Constitution attempted to implement; Bork, on the other hand, not only rejects the Declaration of Independence not only for purposes of Constitutional interpretation but rejects the principles found in it as well. As Walter Olson points out, he uses “liberty” and “pursuit of happiness” as pejoratives in his books and generally deplores the influence of that document. So there are significant differences between the two of them as well.
Was the usurpation of the nomination process by the Senate either effective or worth the damage it has subsequently caused to the nomination and approval process?
I have no idea what “usurpation of the nomination process” means in this context. What exactly was done differently in this nomination than in any other? The nominees views were discussed, he was asked about them, and his views were accepted by some and rejected by others. In this case, more than 50 Senators concluded that his views were sufficently wrong and/or dangerous that they didn’t want to put him on the court. How exactly is any of that a “usurpation”, particularly an “extra-constitutional” one? You’ve thrown around this rhetoric, and pretended that I have agreed with it but think it’s a good thing, but you haven’t bothered to define it.
Mr Hamilton warned in Federalist #76 that exactly what is happening would occur if the nomination process was done by select committee. He wrote (prophetically) that:
Hence, in every exercise of the power of appointing to offices, by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly.
That is a fair description of the mounting conflict.
But an absolutely bizarre interpretation of Hamilton’s words. Read the context of Federalist 76 and it is clear that this is not a warning but a statement of how things ought to be. In the paragraph that this passage appears in, Hamilton is arguing against the notion that the President should have the sole power of appointment without the consent of the Senate. The passage Olson quotes is not a warning at all. He is saying that if you are going to have a President who nominates and the Senate who approves, you can expect that during the Senate deliberations you would have a full airing of the views on both sides, with arguments for and against the nominee, and it would all be aired in public and then voted upon. Is this a bad thing? I submit that it is a very good thing. Hamilton then goes on to point out that the Senate would only rarely reject a nominee except with very good reason:
But might not his nomination be overruled? I grant it might, yet this could only be to make place for another nomination by himself. The person ultimately appointed must be the object of his preference, though perhaps not in the first degree. It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them; and as their dissent might cast a kind of stigma upon the individual rejected, and might have the appearance of a reflection upon the judgment of the chief magistrate, it is not likely that their sanction would often be refused, were there were not special and strong reasons for the refusal.
And he was right. Supreme Court nominees are very rarely rejected. Bork has been the only one in decades to be voted down in confirmation, and the Senate was absolutely right to do so.
It is our inheritance from our treatment of Mr Bork. For when the committee takes upon itself to examine more than whether the nomination itself was motivated by improper connections between the Executive and the nominee, i.e., his politics, ideology, or stance on given issues, then that committe is repeating what really is part of the nomination process. Does he truly think this change was worth it?
I don’t think it was a change at all, and I find it absolutely ridiculous that one could believe that the Senate should decide whether someone should be on the Supreme Court or not without giving any consideration at all to how they would do the very job they are nominated for. I would say that the single most important consideration is how the nominee would interpret and apply the Constitution. Why? Because that’s their job as a justice and it’s insane to think that how one would do a job is irrelevant to whether one should give them the job. And I dare say that Mr. Olson doesn’t really believe that either. If a potential nominee were to say, “I don’t think the original meaning of the Constitution matters at all. I don’t think the actual text matters at all. I think judges should just do whatever they think is right in the case before them and shouldn’t worry about what a bunch of rich dead white men believed 200 years ago”, I would be willing to bet that Mr. Olson would change his mind quickly and decide that the Senate certainly should consider a nominee’s views on constitutional interpretation when deciding whether to put them on the court and should keep that person off the court. And in that case, I’d be right with him in urging the Senate to reject that nominee, by the way. Anyone who would take such a position should be rejected for the court.
Not only do I think examining the judicial philosophy of a nominee is good, I want more of it and I want Senators who are educated enough to question them skillfully. I want to see them defend their views. I don’t want to just hear about undefined vagueries like “judicial temperament”, I want to know how a nominee interprets key provisions of the constitution. I want to know if they think the interstate commerce clause should cover actions that are neither interstate nor commerce. I want to know if they believe that the phrase “public use” in the 5th amendment can be legitimately abstracted to mean “private use with a claimed public benefit.” I want to know if they think that unenumerated rights are judicially enforcable, and if so, by what criteria would they determine whether an assertion of such a right is legitimate or not? And if they don’t believe that unenumerated rights are judicially enforcable, I want them to explain why the 9th amendment exists at all if unenumerated rights are simply left to the whim of a majority at any given time. I want to know whether they think the Declaration of Independence is an important text for understanding the legitimate aims of government as defined by the founders. And I could go on with a few dozen more questions as well.
Not only do I want to know the answers to those questions, I think nominees have an obligation to answer them in front of the entire nation. They are asking to be given a lifetime appointment to the nation’s highest court where their decisions will have more of an impact on our lives and our liberty than virtually any other body in the world. Our liberty is in their hands and they have an obligation to tell us what they intend to do with it before we give that power to them. I don’t want to hear that the nominee is kind, decent, trustworthy, thrifty and brave. I want to hear what they would do with their almost unbridled power to interpret the Constitution because that document is the backbone of American liberty. And any Senator who does not ask such questions shouldn’t be in office. The problem is not that the Senate explores a nominee’s ideology, it’s that they generally do so dishonestly and badly and only in the service of their own political interests.