- The Washington Times - Sunday, September 11, 2005

Robert H. Bork should be asked by President George W. Bush to testify as the premier public witness before the Senate Judiciary Committee in favor John G. Roberts, Jr., Mr. Bush’s nominee as chief justice of the United States. To paraphrase the Gettysburg Address, it is altogether fitting and proper that President Bush should do this.

Mr. Bork, an unfairly defeated Supreme Court nominee, deserves an opportunity to clear his good name, akin to the Senate expunging a defamatory blot on President Andrew Jackson in 1837. Mr. Bork’s 1987 confirmation hearings, captained by then Judiciary Committee Chairman Joe Biden, Delaware Democrat, featured wild distortions of his views, presenting him as complacent about back-alley abortions, Jim Crow and unsafe working conditions. Mr. Bork was accused by legal inferiors, such as Howard Metzenbaum, Ohio Democrat, Edward Kennedy, Massachusetts Democrat, and Arlen Specter, Pennsylvania Republican, of holding an extremist philosophy, i.e., that the U.S. Constitution should be interpreted to honor its original meaning as deduced from the text and purpose, a yardstick embraced by the Founding Fathers, including James Madison, Thomas Jefferson and Alexander Hamilton.

The extremist accusation was further discredited. Associate Justice Antonin Scalia was unanimously confirmed by the Senate but one year earlier. And as colleagues on the U.S. Court of Appeals for the District of Columbia Circuit, Mr. Bork and Justice Scalia had voted identically in 402 of the 404 cases in which they sat together. In the two decisions where they parted company, Mr. Bork was the more liberal of the two.

With regard to qualifications, Mr. Bork was the Ursa Major of the legal universe. He had served brilliantly as solicitor general of the United States and circuit court judge. His scholarly credentials glistened. Mr. Bork had challenged the abstract expressionist theory of constitutional interpretation then prevailing in the Supreme Court with the same incisiveness and boldness of Galileo and Copernicus in overthrowing Ptolemy.

Confronted with an antagonistic Judiciary Committee and U.S. Senate like Socrates before the Athenian jury, Mr. Bork did not surrender his principles. He lost the battle for a Supreme Court seat. But as a lawyer, public figure, and riveting author, Mr. Bork turned the tide in the war of ideas by a withering attack on the court’s chronic nonconstitutional invocations of penumbras, emanations, evolving standards of decency, mysteries of the universe, the meaning of existence and social estrangement to concoct rights and to frustrate popular will.

Eighteen years after Mr. Bork’s rejection, the interpretive philosophy he touted has become mainstream or unalarming constitutional thinking. The Supreme Court, for example, has largely endorsed Mr. Bork’s understanding of congressional power under the Commerce Clause and section 5 of the 14th Amendment. It has substantially echoed Mr. Bork’s philosophy on racial or gender discrimination, the Free Exercise Clause, rights of the accused, opening the courthouse to bystanders, presidential powers, national security and unadventurous statutory interpretations.

The war over constitutional philosophy, however, remains unfinished. The high court intermittently relapses into abstract expressionist decisions on the death penalty, church-state relations, affirmative action, abortion, homosexual sodomy and a generalized right to privacy.

Mr. Bork as a public witness would be an intellectual juggernaut in moving the legal culture and orthodoxies toward originalism and defending his 1987 testimony.

The political drama would be arresting. Mr. Bork would be jaw-to-jaw with a gang of four of his erstwhile Judiciary Committee detractors: Chairman Specter, Ranking Member Patrick Leahy, Vermont Democrat, and Mr. Biden and Mr. Kennedy.

The path of the law is the path of conventional wisdom, right or wrong. If Mr. Bush wishes decisively to alter Supreme Court doctrines, he must organize a frontal assault on freestyle interpretations, with Mr. Bork leading the charge. A similar confrontational approach enabled President Franklin D. Roosevelt to overcome the Supreme Court’s embrace of Social Darwinism and Herbert Spencer’s Social Statics as the measure of constitutional law.

It would be additionally fitting that Mr. Bork testify on behalf of John Roberts because that nomination would not have occurred without Mr. Bork. If Mr. Bork had not altered the post-1987 legal landscape, Judge Roberts would have been maligned as an extremist who despised civil rights and privacy.

Judge Roberts’ voluminous writings as a high-ranking Justice Department and White House lawyer on controversial issues are vintage Robert Bork, but with a less gladiatorial style.

On such issues as affirmative action, privacy, fundamental rights, abortion, comparable worth, judicial remedial encyclicals, church-state relations and statutory construction, not an inch of difference separates Judge Roberts from Mr. Bork. Judge Robert’s ascendancy is Mr. Bork’s vindication.

Leadership is made of sterner stuff than President Bush’s sheepish embrace of nominee Judge Roberts and, more important, his philosophical convictions. Summoning Mr. Bork as a public witness would prove the president has awakened from his current folly of reticence.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.


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