ATLANTA — You know you are entering the wacky world of a judicial confirmation hearing when failed Supreme Court nominee Robert Bork pops up to trash the current nominee, Elena Kagan, as being insufficiently “mellow.”
“The danger of Ms. Kagan is that she hasn’t had any experience that would lead her to mellow,” Bork told reporters in a telephone conference set up by an anti-abortion group. He said this with no apparent irony.
Bork has had plenty of time and experience for mellowing to set in.
It hasn’t. During the 23 years since the Senate rejected him for holding unsuitably radical views of the law, Bork has rarely missed a chance to put down Democratic Supreme Court nominees or an occasional sitting justice of either partisan origin.
This month he skewered the man who took the seat he would have had, Anthony Kennedy, as he did Justice Sandra Day O’Connor upon her retirement from the bench. Few are as pure as Bork, something for which we should all be grateful.
As for Kagan, the former dean of Harvard Law School, he says she doesn’t have the background or legal maturity for the job.
“The academic world is not a place in which you learn prudence and caution and other virtues of a judge,” Bork said.
But the thing that should completely disqualify her from the Supreme Court, he said, is a comment she made in 2006. While introducing the former top justice of the Israeli Supreme Court, she called him “my judicial hero.” Yes, that one remark, made at a Harvard ceremony honoring Aharon Barak, proves she is unfit for the court.
Why? Because it means “an American Supreme Court nominee was going to follow the example of Barak,” who “may be the worst judge on the planet, the most activist,” in Bork’s view.
This comes from a man who complained for years that his enemies cynically distorted his words into outright lies to defeat his confirmation.
Yes, Barak exercised a very muscular view of the Supreme Court’s role in Israel, expanding its powers and the range of issues over which it has the last word, critics and fans would agree.
It is also true that differences between the United States and Israel make it unlikely that Kagan is hoping to mimic him.
Israel has no constitution, for starters. That makes it hard to apply Israeli standards for the proper role of the judiciary to the U.S., where the parameters of the judiciary’s job and the supremacy of the Constitution were established more than two centuries ago in Marbury v. Madison. Israeli law is a comparative baby, as that nation itself came into being 145 years after Marbury.
What does Kagan admire about Barak? “He is the judge who has best advanced democracy, human rights, the rule of law and justice,” she said in 2006.
In their search for damning material, Republicans have latched onto her Barak remark because it fits nicely with their effort to label Kagan as an activist outside the mainstream of legal thought.
Speaking of the mainstream, let’s get back to Bork.
Yes, there were distortions of his views in 1987. Mostly they occurred by conflating his rigid “original intent” philosophy of constitutional interpretation with the consequences of actually putting his theory to work.
He had written that the landmark civil rights law Congress passed in 1964 was unconstitutional. He called it “unmatched ugliness” to interfere with restaurateurs’ right to refuse to serve black people.
He said the Supreme Court was wrong to rule the constitutional guarantee of equal protection under the law applied to women. In Bork’s view, the court had no basis for striking down a Connecticut law forbidding the sale and possession of contraceptives, much less the Texas law making most abortions illegal.
But that didn’t mean he believed in segregation or male superiority, he made clear at his hearing. Nor did it mean he thought couples had no right to plan their families, calling that Connecticut law “nutty.” It’s just that those would have been the consequences of his constitutional theory. Oh well.
At his hearing, Bork went through what Sen. Patrick Leahy called a “confirmation conversion,” adding nuance to his more strident views, modifying some and pledging to follow (most) court precedents even if he disagreed with them.
Some of his critics, most vividly the late senator Edward Kennedy, created an impression that Bork favored the inevitable results of his beliefs.
Why bring all this up now? Bork, 83, is still relevant. His viewpoints helped energize the conservative legal movement, which thrives today and is creating the pushback against Kagan.
Conservatives still claim a dishonest campaign by liberals kept Bork off the court, not his true beliefs.
Now, it would seem, they are trying to turn the tables.
A little mellowing is in order.
Ann Woolner is a Bloomberg News columnist.
