It’s Missing the Point to See Bird’s Ghost in Bork Fight

Some profess to see the ghost of Rose Bird in the current liberal opposition to the nomination of Robert Bork to the U.S. Supreme Court.

When the political right mounted a successful effort last year to oust the controversial chief justice of California and two other liberal members of the state Supreme Court, there were warnings that the removal of judges for the unpopularity of their decisions could set a dangerous precedent for any future populist movement intent on rapid, ideological remaking of the judiciary. If that occurred, the real loser in the anti-Bird campaign would prove to be the inherently conservative nature of the judiciary as an institution.

Is that what is going on with the Bork nomination? Are the anti-Bird chickens coming home to roost?

Many apparently think so. President Reagan, who was not heard from as a defender of the embattled California justices last fall, has called on the public to “resist the politicization of our court system.” Some active in the anti-Bird campaign find it ironic and hypocritical that people who opposed the ouster effort on grounds of judicial independence now oppose Bork because of his judicial views.

These assertions miss the point. If what is now occurring was an effort to oust Judge Bork from his seat on the Court of Appeals because of decisions that he had rendered, then parallels to the 1986 anti-Bird campaign would indeed be warranted. Such is not the case, however.

The perniciousness of the Bird ouster campaign was its direct assault on the very foundation of the judiciary as an inherently conservative institution: the insulation of its decision-making from the politics of the moment. The founders intended such insulation for the federal courts by limiting changes to naturally occurring vacancies and by strictly limiting grounds for the removal of judges. In California the latter was accomplished by the historical tradition of excluding from consideration during the periodic confirmation elections any focus on a judge’s substantive decisions. It was only to an institution so insulated that ultimate responsibility was entrusted for the preservation of fundamental constitutional principles against encroachment by fleeting majority passions. The ouster of three California justices because of their decisions directly breached this wall.

Does it follow from this, then, that it is improper to consider the judicial philosophy and views of one who is named to the Supreme Court, or to oppose a nominee because of fundamental disagreement with that philosophy? Hardly. The nomination stage is the one point at which direct political input into the judiciary was intended.

As Columbia law professor Charles Black noted in a 1970 essay on the issue, “Once on the court, a justice wields that power without a democratic check. This is as it should be. But is it not wise, before that power is put in his hands for life, that a nominee be screened by the democracy in the fullest manner possible?” Black strongly concluded, after a review of materials relating to original intent on the question, “that a senator, voting on a presidential nomination to the court, not only may but generally ought to vote in the negative, if he firmly believes, on reasonable grounds, that the nominee’s views on the large issues of the day will make it harmful to the country for him to sit and vote on the court.”

Historically, Presidents have used their appointment power to place on the court persons with judicial views more consonant with their own on important political and constitutional questions. What, then, can the President possibly mean when he argues against “politicization” of the court in the context of opposition to the Bork nomination? He seems to be articulating the often expressed view that while a President may consider a nominee’s judicial views, the Senate’s role ought to be limited to reviewing the academic qualifications, ethics and experience of the nominee.

Is that the intended role for the Senate in passing on court nominations? The Constitution gives little guidance: Article II provides that the President shall appoint judges to the court “by and with the Advice and Consent of the Senate.”

But the constitutional history of this brief provision suggests the intention of an assertive Senate role, equal rather than subordinate to the President’s.

Certainly there are limits to proper Senate inquiry. Some senators have improperly sought to extract commitments from Bork to decide issues a particular way, and the nominee has sometimes seemed too willing to accommodate them. We also have the right to expect a higher level of discourse than the demagogic speech-making that we have heard from some committee members on both sides of the issue.

But the notion that it is improper for senators to evaluate Bork’s judicial philosophy and views in deciding whether to confirm him finds little support in constitutional jurisprudence or history. Opposition to the Bork nomination is not a liberal version of the 1986 ideological assault on the California Supreme Court.