This article by Elie Mystal is likely to be in next year's packet for the Judiciary chapter. It has a strong liberal flavor overall, but also argues that defeating Bork was, while the product of Bork's views and not a matter of defamation, ultimately a bad thing for the Supreme Court itself. Key quote:
Don’t get me wrong, he would have been a terrible justice. An evil one. ...America is better because Bork never sat on the Supreme Court.
But the Court, as an institution, is worse. The country learned the wrong lesson from the Bork confirmation hearings. Bork’s rejection should have been a signal that presidents should nominate judicial centrists, not Scalia-like ideologues who long for the good old days when the Constitution protected each state’s right to trample on their women and minorities. After Bork, Reagan nominated Anthony Kennedy, who was confirmed unanimously. You don’t get much more centrist than Kennedy (actually, you do, her name is Sandra Day O’Connor). One might have hoped that the Bork fight was a weird, ugly, nomination anomaly.
Then Thurgood Marshall died, Bush 1 sent up the most conservative whackjob he could find, and thought nobody would notice because he was black. It’s amazing how pubic hair in a soft drink will ruin a party.
And now here we are. Some nominations are contested, some eventually garner broad support. Some are “borked” before they even get started. But the threat of having a huge Senate fight over the nominee’s politics instead of his or her qualifications has changed the fundamental nature of how we nominate and confirm justices to the Court. And not in a good way.
If you click through -- which is advised -- note that Chief Justice John Roberts made reference to "calling balls and strikes" during his confirmation hearings, as if judging was really just a matter of reading comprehension.
1 comment:
Supreme Court justices are scrutinized for their ideological beliefs and any kind of controversy or scandal that they might have been associated with in the past; therefore, their competency tends to get overshadowed by those factors before and after confirmation. If anything is dug up through the trash, it makes people think that the nominee is unfit to judge anything objectively because they make bad decisions or are too extreme in their views to adequately protect our rights. I don’t believe that anyone should be criticized for their political values because those values don’t necessarily determine how one interprets laws. A given justice’s decisions don’t necessarily correlate with seemingly strong political views, as we have learned in class.
Bork was publicly conservative and outspoken, but he shouldn’t have been under the microscope because of it. The selection process has become more political since Bork but because of scrutiny over his ideology, not because Bork was a corrupt person. This doesn’t mean that the justice selection process is corrupt, though. It is just highly subjective because it takes so many things into account, such as political pressure over race and ethnicity, ideology as well as qualifications.
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