Judge Robert Bork — whose last name became a verb to describe how liberals manipulate the political process to kill a U.S. Supreme Court nomination when he was "Borked" in 1987 — has no shortage of opinions about the current battle in Congress over President Bush's judicial nominees.
He talked with CitizenLink today about the president's renewed push to secure Senate votes on nominees that have been previously filibustered by Democrats.
Q. Judge Bork, the election showed us a lot with regard to how voters feel, but have things really changed with regard to judicial nominations?
A. No. Nothing has really changed with the courts.
So what is the president signaling with the renomination of all his prior bottled-up nominees?
He's signaling, I think, that he wants to remake the courts, to a certain degree, and those nominees are the best that he has, and he's going to fight for them. I think he also has some understanding that the Republicans will change the Senate rules to break the filibuster.
Is he counting, then, on the so-called "nuclear" option?
Yes. It's an unfortunate name, but he is.
What do you think about that proposal?
I don't know what I think about it, because it can be a handy device from time to time for both sides. But I do think in this case they ought to use the option when senators prevent judge nominees from even getting to the Senate floor for a confirmation vote — especially when the nominees would otherwise have a clear majority vote on the floor. I think I would be in favor of it, then.
Let me ask you this: It seems clear that the Democrats who have filibustered so many appointments over the last four years have done so largely for ideological purposes. But is it an oversimplification to say that they have done so because they favor judicial activism?
No, that's not an oversimplification at all. That's their whole game plan. They've lost the presidency, they've lost the Senate, they've lost the House. What they have left is the Supreme Court, and they can get stuff through the Supreme Court that they can't get through any legislature in the country. They are counting on activist judges that will make rulings that have nothing to do with the actual Constitution — but will move the culture in a left-liberal direction.
If you had advice to give to the Senate, or the president, or both, about nominations to the court, what would you advise?
Well, when it comes to the Supreme Court, they better be very sure of who they've got. Because we've had a number of people who looked to be of conservative temperament and got on the court and promptly moved to the left, in cultural terms. Now, I can't think of a single nominee in the 20th century who went on the court and moved to the right. But we've had a number of examples of people moving to the left.
Why is that? Why the leftward drift?
It's not quite clear to me. But one possible explanation is that the rewards of moving left are much greater. You get praised by The New York Times and by the Washington Post and by the networks and by the law schools and universities and Hollywood and so forth — and by the people you associate with, who are generally culturally left.
There may also be a form of unconscious conditioning. I use the example of a professor of psychology who taught his class about unconscious conditioning — that is, where people don't realize they are being conditioned. And his students decided to try out the idea on him.
He was a pacer during his lectures, and when he began pacing back and forth — they went into action. When he paced towards the outer wall of the classroom, the students would pay rapt attention and take notes and look as intent as they could. When he paced the other direction, they began to rustle papers and sneak looks at their newspapers and whisper to each other. And within 10 or 15 minutes, they had him pinned to the outside wall. And he didn't even know it. He just realized unconsciously that things were going better when he was moving that way. I think a lot justices might experience that when they get on the court.
There is also a feeling of power. When you get on the court, you begin to think you can remake society — in what you regard as a more just way.
