“Borking” is back. The eponymous activity first perpetrated on Judge Robert Bork when he was nominated for a seat on the United States Supreme Court is the practice of painting a proposed judicial appointee as consciously demonic, in order to excite particular interest groups to oppose his appointment. Some might oppose Borkees because of honest differences over judicial perspective, but this is certainly not required.
The Ur-Borker was Sen. Edward Kennedy, who, when President Ronald Reagan nominated Bork to the Court in 1987, intoned on the floor of the Senate that “Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy.” As Bork reported in his biographical account of the incident, Senator Kennedy explained to the besieged nominee that his remarks were “nothing personal.” It is difficult not to conclude that Kennedy knew his anti-Bork rhetoric was a total fabrication. We may be about to sec the same activity on an even greater scale.
Over the course of the next four years, President George W. Bush will have the opportunity to remake the federal judiciary in whatever image he chooses. When he was campaigning, candidate Bush said he would appoint judges close to the judicial mold of Supreme Court Associate Justices Antonin Scalia and Clarence Thomas. This was explained to mean that Bush wanted jurists who would not legislate from the bench but instead interpret the Constitution according to its original understanding. Four years is often enough time to appoint a sitting majority of lower federal court judges; since turnover rates for the federal judiciary may be accelerating, there is a very real prospect that Bush appointees may soon be the dominant force in jurisprudence. Indeed, several vacancies may open up on the Supreme Court within two or three years, and the closely divided Court may change dramatically in character.
If Bush keeps his campaign promises, the era when the federal courts dramatically cut back on traditional state prerogatives in areas of morality, education, law enforcement, legislative apportionment, and other matters may be coming to a close. The control of policy by litigation (and, indeed, the use of the courts by litigants and their lawyers to frustrate state civil-justice reform) might just be imperiled.
And so the first (relatively modest) list of federal lower-court nominees put forth by President Bush in May—a list that even included two minority judges originally placed on the bench by President Clinton —alarmed the Borkers. Particular fire was directed at Michael McConnell, a soft-spoken professor at the University of Utah School of Law, who was nominated for a seat on the U.S. Court of Appeals for the Tenth Circuit. McConnell was an editor of the law review while a student at the University of Chicago Law School; he then clerked for an appeals-court judge and for Supreme Court Justice William J. Brennan, Jr. He later served as assistant to the U.S. solicitor general, assistant general counsel for the U.S. Office of Management and Budget, and as a law professor at the University of Chicago for a dozen years. He was recently offered a tenured appointment at the Harvard Law School. He is an exceptionally effective advocate before the U.S. Supreme Court, often representing religious organizations. It is difficult to imagine someone with more impeccable credentials, but McConnell, like almost every other serious student of constitutional law, had expressed reservations about Supreme Court decisions “discovering” a right to abortion in the Constitution, as well as similar acts of judicial creativity.
McConnell is also generally known to be a person of strong personal religious convictions, and he has argued that the original understanding of the Constitution included some place for religion in the public square. The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, immediately Borked: “This nomination represents a terrible assault on American freedom by the Bush administration. McConnell is the religious right’s dream court nominee. He’s a conservative Christian who’s willing to use the force of government to impose his viewpoint.” Reverend Lynn isn’t quite up to Senator Kennedy’s standards, but he shows promise. Soon it may be time to recall Sen. Alan Simpson’s words during the Bork hearings, when he called the Borkers “the 4-H Club of hype, hoorah, hysteria and hubris.” Said Simpson, “I referred to them once as ‘hug-eyed zealots.’ I have no reason to change that opinion at all.” Nor would he have one now.
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