Monday, August 10, 2009


Bork, Lamar, and the Supreme Court

"The neutral or nonpolitical application of principle has been discussed in connection with (Herbert) Wechsler's discussion in Brown v. Board of Education. It is a requirement, like the others, addressed to the judge's integrity. Having derived and defined the principle to be applied, he must apply it consistently and without regard to his sympathy or lack of sympathy with the parties before him. This does not mean that the judge will never change the principle he has derived and defined. Anybody who has dealt extensively with the law knows that a new case may seem to fall within a principle as stated and yet not fall within the rationale underlying it. As new cases present new patterns, the principle will often be restated and redefined. There is nothing wrong with that; it is , in fact, highly desirable. But the judge must be clarifying his own reasoning and verbal formulations and not trimming to arrive at results desired on grounds extraneous to the Constitution. This requires a fair degree of sophistication and self-consciousness on the part of the judge. The only external discipline to which the judge is subject is the scrutiny of professional observers who will be able to tell over a period of time whether or not he is displaying intellectual integrity."

The above is from Robert Bork's essay "The Case Against Political Judging," which is included in his recent book, A Time to Speak. It's a phenomenal book, although not a page turner. It includes some of his briefs (such as in the case on the constitutionality of the death penalty, Gregg v. Georgia), more noted opinions, articles, columns, debates, and even some pieces outside of the legal realm. It's probably best read in a piecemeal manner; that's how I approached it. At 715 pages, the amount of information contained in the book is immense. However, unlike some of the academic texts that I have been sent over the years, this one is quite readable. (For some reason, various philosopher kings author books that are written on an overly advanced level. Yes, I can read those books, but I certainly don't enjoy reading those books...) It would make an excellent addition to anyone's library, especially conservative lawyers.

Although it seems a little too late, I would like to have passed this text on to my friend, Senator Lamar Alexander. As a member of the Senate, I would have liked for Lamar to have referred to Bork's text when contemplating his vote on (now Justice) Sotomayor. I would have challenged Lamar to think if Bork, when speaking of the qualities of a good, strong, impartial judge, would have approved of this particular nominee.

Along those lines, I'm not particularly angry at the confirmation of Sotomayor to SCOTUS. She is a sure-fire liberal vote, much like the man she's replacing. And, like Souter, she's an intellectual lightweight who can't hold her own with others already on the Court. That's why I'm not mad. There are other, more sinister candidates that Obama could have chosen. Perhaps if another vacancy is created during Obama's term as POTUS (and it is likely), I should make sure that Lamar has A Time to Speak on his desk in D.C.

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