Losing The Courts, Part 2

Gary McDowell has an op-ed over at the Opinion Journal that reminds us of the way the confirmation hearings for Judge Robert H. Bork fundamentally changed the confirmation process for Supreme Court justices. Not in a good way, either. Opponents of Bork rallied against him because he did not believe in legislation by judicial fiat.

It was immediately clear that the unprecedented vote of 58-42 against his confirmation reflected something far more historic and fundamental than an ordinary partisan standoff. The confrontation in fact had been one of the most cataclysmic and divisive events in American domestic politics during the second half of the 20th century. The reason was that Mr. Bork's opponents succeeded in making the fight over his nomination into a contest over the future of the Constitution.

The issue that united the judge's critics in their fiery, scorched-earth opposition was never his ability or reputation but rather his theory of judging. Mr. Bork's belief was that judges and justices in their interpretations of the Constitution must be bound to the original intentions of its framers. In his sober constitutional jurisprudence there was no room for any airy talk about a general right of privacy, allegedly unwritten constitutions, vague notions of unenumerated rights, or what the progressive Justice Black once derided as "any mysterious and uncertain natural law concept." For Mr. Bork, the framers said what they meant, and meant what they said.

Mr. Bork's approach had its roots in hundreds of years of common law history as well as in the political philosophy of those whose works serve as the foundation of American constitutionalism. Chief Justice John Marshall had summed up that received tradition when he proclaimed that recourse to a lawgiver's original intention is "the most sacred rule of interpretation." In Marshall's view, it is always "the great duty of a judge who construes an instrument . . . to find the intention of its makers." As with Marshall, so also with Mr. Bork.

The 2008 election is about much, much more than the presidency. It is about the future of the courts. After what was done to Bork, conservatives should be aware that while it is difficult for a Republican president to get good nominees into the Federal courts, it is still worth fighting for. Losing the courts for a generation or more would be a disaster.