Bork: Kagan Has “Immature” Judicial Theory

June 24th, 2010 at 1:12 am | 12 Comments |

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On a conference call sponsored by Americans United for Life, Robert Bork expanded on his reasons why Elena Kagan is not qualified to serve on the Supreme Court:

“It’s typical of young lawyers going into constitutional law that they have inflated dreams of what constitutional law can do, what courts can do,” Bork said. “That usually wears off as time passes and they get experience. But Ms. Kagan has not had time to develop a mature philosophy of judging. I would say her admiration for Barak, the Israeli justice, is a prime example. As I’ve said before, Barak might be the least competent judge on the planet.”

Bork went on to give a history of Barak’s tenure, accusing him of creating a “parody of a court.” This left most of the people on the call fairly cold, and the first questions to him pivoted immediately away from the Barak issue. But I asked Bork what he thought of the fact that other jurists, including Justice Antonin Scalia, had praised Barak and even praised his version of “judicial activism.” Was praise for Barak really a disqualifying factor?

“That sounds like politeness offered on a formal occasion,” Bork said dismissively. “Scalia’s career does not square with Barak’s at all.”

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12 Comments so far ↓

  • Slide

    WHat a bitter, bitter little man. Thank God he wasn’t confirmed.

  • Mark Rosenthal

    Well, now, if that isn’t the mouse calling the keypad ugly and intransigent.

  • Nanotek

    Wit and wisdom from a guy who argued the First Amendment only applied to political speech, not scientific or artistic and who declared the Ninth Amendment but an ink blot.

    The nation dodged a bullet when he wasn’t confirmed as one of Reagan’s appointees.

  • Carney

    Bork actually understands and respects the idea that the people and their elected representatives should make the law, and that an item of text means only what the writers and ratifiers meant it to mean.

    Progressives used to respect the Constitution. When they wanted to extend voting rights to women, blacks, and young adults, or to directly elect US Senators, or to ban poll taxes, they did the hard work of persuading their fellow citizens and changing the actual written text the Constitution, instead of egging on a judge to impose his personally preferred policy outcomes via BS stretching of the “general welfare” and “equal protection” clauses.

  • Rabiner

    Carney:

    That is such utter bull. Conservatives stop caring about the Constitution after the 2nd amendment. They don’t care about the separation of powers considering they deitized Reagan after he abused his office during Iran-Contra. Iran-Contra is easily an impeachable offense.

    At least we use actual clauses in the Constitution when making policy arguments as opposed to half-assed approaches like ‘we’re under attack so lets curtain civil liberties for your safety’.

  • Carney

    Rabiner, the only reason the “Contra” part of that affair was a “scandal” at all was that Congress had already trashed the separation of powers with the Boland Amendment, overstepping its bounds by intruding into foreign policy, where the executive is traditionally the primary, if not the exclusive, policy-maker. It sought to criminalize foreign policy differences, and specifically Reagan’s policy of challenging and rolling back Communist aggression and expansion rather than weakly consenting to decline like the pre-Thatcher UK PMs. So pot, meet kettle.

    In any case, we can trade real or alleged separation-of-powers encroachments by either elected branch all day.

    But I was talking about constitutional interpretation in the context of judicial philosophy. And no, just citing a phrase does not legitimize a judicial overreach. For example, the “general welfare” clause was not an open-ended grant of sweeping power to the central government as long as that government self-servingly proclaimed its actions to be in the “general welfare”; that clause was instead part of an EXPLANATION OF REASONS for the subsequent limited list of delegated powers. No point in a specific list if the feds can do whatever they want, is there?

  • Carney

    By the way, props to FrumForum for adding a “Modify” option to already-posted comments…

  • Nanotek

    “Bork actually understands and respects the idea that the people and their elected representatives should make the law, and that an item of text means only what the writers and ratifiers meant it to mean.”

    Carney … believe that if it comforts you but that claim is not tethered to reality.

    Elected representatives, of course, make the law — unless it conflicts with guarantees established in the US Constitution, which is super-majoritarian document. The Bill of Rights guarantees equal rights and unenumerated rights (9th Amendment). Bork and movement conservatives do not respect the equal rights guarantees or unenumerated rights, like the right to privacy.

  • Nanotek

    “By the way, props to FrumForum for adding a “Modify” option to already-posted comments…”

    Carney, agreed. That’s neat.

  • LFC

    Bork and movement conservatives do not respect the equal rights guarantees or unenumerated rights, like the right to privacy.

    No, but they are perfectly willing to pull a state’s right to select its electors (Bush vs. Gore) under the equal protection clause, while Scalia et al supported the Texas gay anti-sodomy law which tried to make a sex act illegal based strictly on gender.

    These types of conservatives are “strict Constitutionalists” (based on their own personal and often flawed view of history) when it suits them.

  • kmort

    Is there room for a legitimate discussion of “what it meant at the time of the Constitution” and “how will it be applied today”? Washington’s Top Two Primary has been declared Constitutional on its face, but room was left to challenge its application. Disclosing petitioners names from initiatives and referendums was declared Contitutional, but Defense of Marriage was given leeway to apply for an exemption in their case.

    I agree that it’s critical to know the original meaning and intent of the Constitution, but 200+ years later, we must find out how to apply that to issues the founding fathers could never have imagined.

  • msmilack

    Just hearing this dialogue makes me glad he was never made a Justice of the Supreme Court. He disallows a difference of opinion, and throws in a hint of anti-semitism while he’s at it — not that I deeply believe the latter but it did cross my mind and the former is obviously true.

    He was not accepted for the job himself because he was too doctrinaire and inflexible; then, in dramatic fashion, he tried to show how he had changed (“matured” perhaps) to appear in a way that would help him get the gig; it didn’t work and has obviously left him very bitter.

    Sad really. I wish there was a less mean way to go through these selections. He is obviously a man of intellect, no one ever disputed that; but he, in my opinion, had the wrong temperament for the highest court (though some of the members do too; additionally, I feel Roberts misrepresented himself at the hearings; no one expected him to vote with big business 100% of the time.)