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Bork v. Bork

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Ten days ago I wrote about the Miers nomination in light of Judge Bork’s introduction to a new book of essays on SCOTUS.

In this morning’s Wall Street Journal, Judge Bork weighs in with a denunciation of the Miers nomination, which includes the fairly astonishing sentence:

The wars in Afghanistan and Iraq aside, George W. Bush has not governed as a conservative (amnesty for illegal immigrants, reckless spending that will ultimately undo his tax cuts, signing a campaign finance bill even while maintaining its unconstitutionality).

This is the same as arguing that “Except for opposing Hitler and later warning of the descent of the Iron Curtain, Churchill did not govern as a conservative.”

It is also striking that Judge Bork includes an assertion about a Bush policy –“amnesty for illegal immigrants” which is simply not true, as well as an exaggeration about spending that confuses Bush’s deficits with those of the President that nominated the judge. Which didn’t undo that president’s tax cuts either.

I prefer the anti-Olympian Judge Bork, the one who would not be dismissive of careers as distinguished though non-judicial as Harriet Miers’ or as contemptuous of her faith as the Wall Street Journal essay clearly is. I am also surprised to see Professor Graglia, Professor Sowell, Dean Starr and others lumped in among the “[s]ome moderate (i.e., lukewarm) conservatives [who] admonish the rest of us to hold our fire until Ms. Miers’s performance at her hearing tells us more about her outlook on law….”

In short, this morning’s is an intemperate essay, quite extraordinary and unpersuasive. But like most of the arrows being fired at Miers now, it was not intended to persuade anyone at all but rather to inflame the anti-Miers crowd into a great frenzy of head-nodding murmuring. It may do that, although today’s issuance of Diane Fienstein’s ominous warning about Miers may have a far greater effect on the BWAE than Judge Bork’s thunder. Look who’s nodding and murmuring right along with you, friends.

I note one great thing about Judge Bork’s essay: It contains the statement that Miers’ record “certainly does not necessarily mean that she would vote to overturn that constitutional travesty.”

But there is one great bad thing as well: Judge Bork immediately proceeds to an argument that it wouldn’t matter if her record did so imply because “[t]here is a great deal more to constitutional law than hostility to Roe.” Not for the 44 million unborn, I suppose, but that’s a side point.

Does Judge Bork mean to say –do all Miers’ critics mean to say– that no nominee ought to proceed from a GOP president unless they are on record as asserting that Roe is a constitutional travesty that ought to be reversed?

Or does Judge Bork mean to say that Roe really doesn’t compare in importance to the lousy but nevertheless not disastrous for human life decision in Bollinger?

Or, as one increasingly has to suspect about some among the anti-Miers collective, is it that Roe really isn’t that big a deal for them, but Bollinger is?

How about Employment Division v. Smith, authored by Justice Scalia, which greatly restricted the Free Exercise clause? Is a nominee to be preferred who agrees with Justice Scalia on this one? Is Justice Scalia’s the originalist position there?

I really don’t know what to make of the anti-Miers collective, except that they are anti-Miers, and have a list of a few people they’d have preferred to see nominated.

Judge Bork and the anti-Miers crowd are increasingly defined by their Potter Stewart-like standard for SCOTUS nominees: They’ll know a good one when they see it.

I missed that part of the GOP platform or the president’s campaign detailing the demand for explicit guarantees on Roe and Bollinger, or a set of resume standards. In fact, I missed any criticism remotely approaching this sort of denunciation when Chief Justice John Roberts was nominated, or Clarence Thomas or David Souter before him. Had Judge Bork been explicit in his introduction to the new book about the importance of such matters, he would have fewer confused readers.

If other anti-Miers critics would carefully lay out their minimum standards for a future SCOTUS nominee –not by name, but by credential and case holdings of concern to them– that would help the non-BWAE conservatives get their bearings.


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