The Lichfield Group

This article appeared in the September 12, 2005 issue of the Washington Times.

Robert H. Bork should be asked by President George W. Bush to testify as the premier public witness before the Senate Judiciary Committee in favor John G. Roberts, Jr., his nominee as Chief Justice of the United States. To borrow from the Gettysburg Address, it is altogether fitting and proper that President Bush should do this.

Bork, an unfairly defeated Supreme Court nominee, deserves an opportunity to clear his good name, akin to the Senate’s expunging a defamatory blot on President Andrew Jackson in 1837. His 1987 confirmation hearings, captained by then Judiciary Committee Chairman Joe Biden (D. Del.), featured wild distortions of his views, for example, complacency with back-alley abortions, Jim Crow, and unsafe working conditions. Nominee Bork was accused by legal inferiors, such as Howard Metzenbaum (D. Ohio), Edward Kennedy (D. Mass.), and Arlen Specter (R. Penn.), of an extremist philosophy, i.e., interpreting the constitution to honor its original meaning as deduced from the text and purpose, an interpretive yardstick embraced by the Founding Fathers, including James Madison, Thomas Jefferson, and Alexander Hamilton.

The extremist accusation was further discredited. Associate Justice Antonin Scalia had been unanimously confirmed by the Senate but one year earlier. And as colleagues on the United States Court of Appeals for the District of Columbia Circuit, Bork and Scalia had voted identically in 402 out of the 404 cases in which they sat together. In the two decisions where they parted company, Bork was the more liberal.

With regard to qualifications, Bork was the Ursa Major of the legal universe. He had served brilliantly as solicitor general of the United States and circuit court judge. His scholarly credentials glistened. Bork had challenged the abstract expressionist theory of constitutional interpretation then prevailing in the Supreme Court with the same incisiveness and boldness of Galileo and Copernicus in overthrowing Ptolemy.

Confronted with an antagonistic Judiciary Committee and United States Senate like Socrates before the Athenian jury, Bork did not surrender his principles. He lost the battle for a Supreme Court seat. But as a lawyer, public figure, and riveting author, Bork turned the tide in the war of ideas by unleashing a withering attack on the Court’s chronic non-constitutional invocations of penumbras, emanations, evolving standards of decency, mysteries of the universe, the meaning of existence and social estrangement to concoct rights and to frustrate popular will. Eighteen years after Bork’s rejection, the interpretive philosophy he touted has become mainstream or unalarming constitutional thinking. The Supreme Court, for example, has largely endorsed Bork’s understanding of congressional power under the Commerce Clause and section 5 of the Fourteenth Amendment. It has substantially echoed Bork’s philosophy on matters of racial or gender discrimination, the Free Exercise Clause, rights of the accused, opening the courthouse to bystanders, presidential powers, national security, and unadventurous statutory interpretations.

The war over constitutional philosophy, however, remains unfinished. The High Court intermittently relapses into abstract expressionist decisions regarding the death penalty, church-state relations, affirmative action, abortion, homosexual sodomy and a generalized right to privacy. Bork as a public witness would be an intellectual juggernaut in moving the legal culture and orthodoxies towards originalism and defending his 1987 testimony. The political drama would be arresting. Bork would be jaw-to-jaw with a gang of four of his erstwhile Judiciary Committee detractors: Chairman Specter, Ranking Member Patrick Leahy (D. Vt.), Biden and Kennedy.

The path of the law is the path of conventional wisdom, whether it is right or wrong. If President Bush wishes decisively to alter Supreme Court doctrines, he must organize a frontal assault on freestyle interpretations with Bork leading the charge. A similar confrontational approach enabled President Franklin D. Roosevelt to overcome the Supreme Court’s embrace of Social Darwinism and Herbert Spencer’s Social Statics as the measure of constitutional law.

It would be additionally fitting that Bork testify for President Bush in support of nominee Roberts because without Bork there would have been no Roberts nomination. If Bork had not altered the post-1987 legal landscape, Roberts would have been maligned as an extremist who despised civil rights and privacy. His voluminous writings as a high echelon Department of Justice and White House lawyer on controversial issues are vintage Bork, but with a less gladiatorial style. On such issues as affirmative action, privacy, fundamental rights, abortion, comparable worth, judicial remedial encyclicals, church-state relations and statutory construction, not an inch of difference separates Roberts from Bork. Robert’s ascendancy is Bork’s vindication.

Leadership is made of sterner stuff than the sheepishness President Bush has been displaying in embracing nominee Roberts and, more important, his philosophical convictions. Bork summoned as a public witness would prove that the President has awakened from his current folly of reticence.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and The Lichfield Group.