I do not often agree with Cass Sustein, but he gets this at least half right. From the New Republic, hat tip to Real Clear Politics:
Is Robert Bork having the last laugh? There is good reason to think so. Over the last months, the nation has witnessed something genuinely new--a kind of un-Borking of the confirmation process, produced by exceptionally shrewd leaders in the Republican Party.
I am not accustomed to praising Republican leadership. I think it was my Dad who told me that "the difference between the two parties is simple: the Democrats are stupid; the Republicans are just plain dumb." That certainly seems to me to accurately describe the Republican leadership during much of the last decades. But not on judicial confirmation politics.
When Bork was rejected by the Senate in 1987, it was because his opponents successfully portrayed him as holding extreme views that would endanger civil rights and liberties. It is true that Bork was the victim of an effective (and unfair) public relations campaign, featuring an influential attack ad narrated by Gregory Peck. But Bork also lost the battle of ideas. He argued that the Constitution should be interpreted to mean what it meant when it was originally ratified. Repudiating the modern right to privacy, Bork insisted that his own approach, based on the document's "original meaning," was neutral--not at all political, but a simple matter of fidelity to law. Spurred by Democrats on the Senate Judiciary Committee, the Senate rejected that claim, concluding in the process that Bork's approach to the Constitution was unacceptable. Republican politicians learned their lesson well, and subsequent Republican appointees pointedly failed to endorse Bork's approach.
Sustein sees the Roberts and Alito hearings as signs that a conservative approach to the Constitution is suddenly triumphant.
Significantly, however, John Roberts did not follow the script set by his Republican predecessors. His overall message was much simpler: He would follow the law. At the same time, he announced, "I do not have an overarching judicial philosophy that I bring to every case." He explained, "I tend to look at the cases from the bottom up rather than the top down."
Samuel Alito largely followed Roberts's script, but at key points he was much more specific. Asked about his general approach, he said, "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption." He also said that "it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution."
Although Alito offered various qualifications, this is Bork's view in a nutshell. . . . [T]he most important point is the development of a new script for confirmation--one that emphasizes fidelity to law, an idea that might well include favorable references to Bork's approach to the Constitution.
This is a fundamental change, one that signals a huge victory by Republican politicians. To a remarkable extent, Republican leaders have convinced the nation that their goal is to ensure that judges follow the Constitution--and that Democratic politicians want judges to "add to the Constitution or subtract from the Constitution."
There is something to this. Democrats insistence on the value of precedent, motivated by their desire to preserve the achievements of judicial activism, seem to have bound themselves to an operationally conservative view of the judiciary. Don't do anything exciting seems to be the new rule. But I am not at all sure about the next part.
[The confirmation] process has been successfully un-Borked. If President Bush is able to fill other vacancies on the Supreme Court, the right script is firmly in place. And if Democratic presidents are able to fill future vacancies, their nominees may well run into trouble, because it will be easy to characterize them as wanting to "add to the Constitution or subtract from the Constitution."
I think that misstates what has happened. Its true that a more conservative approach to the Constitution has been vindicated, but that may be temporary. What is liable to be more lasting is the idea that judges ought to be confirmed if they are highly qualified and not radicals. I think Republicans will honor that rule when the next Democratic President sends up a name to the Senate.
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