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I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, January 11, 2006

If Bork was too radical for the Court, why isn't Alito?

One of the difficulties with judicial confirmation hearings is that there is no real standard to use for determining which nominees should be confirmed and what constitutes a disqualifying attribute.

But one of the few things that is settled in this process is that whatever else it means to be too radical to be confirmed to the Supreme Court, Robert Bork was too radical, which is why he was overwhelmingly rejected by the Senate and by Americans. Bork has come to set the standard for non-confirmability – he is now the embodiment, the measure, in this country of a nominee whose views are so radical that he is disqualified from serving on the Court.

For that reason, as Alito opponents are starting to highlight, the most significant fact revealed during Alito’s confirmation hearings yesterday, by far, was the extreme praise which Alito heaped on Robert Bork when Alito was already the U.S. Attorney in New Jersey. As uncovered by The Washington Post, Alito, in 1988, did not just say that he supported Bork’s nomination, but also made clear that Bork was his ideal for what a Supreme Court Justice ought to be:

Aron: Do you think Robert Bork should have been confirmed?

Alito: I certainly thought he should have been confirmed. I think he was one of the most outstanding nominees of this century.

Aron: Why? How?

Alito: He is a man of unequaled intellectual ability, understanding of constitutional history, someone who had thought deeply throughout his entire life about constitutional issues and about the Supreme Court and the role that it ought to play in American society.

That is extraordinary praise for someone who was judged too radical to serve on the Supreme Court. And even more strikingly, when asked why he believed Bork was one of the greatest nominees, Alito cited exactly that which compelled the Senate and the country to reject Bork’s nomination: specifically, Bork’s "understanding of constitutional history" and his thoughts "about the Supreme Court and the role it ought to play in American society."

This leads to an obvious and overarching point: If Robert Bork was so far out of the mainstream in 1988 as to be unfit to serve on the Supreme Court, how can Sam Alito be in the mainstream in 2006? Since Alito has cited as his judicial hero someone whom the country overwhelmingly rejected as being too radical, shouldn’t Alito and his allies bear the heavy burden of demonstrating in what material respects Alito differs from Bork?

Alito does not claim that he’s changed his views in any way during his legal career. To the contrary, he’s been a model of consistency and immovability. Nobody suggests that he is anything but the same person as he was in 1988.

The views of Bork which led to his rejection are not obsolete relics of that time period. Quite the contrary; they are urgently relevant to the most critical issues of today. Here, for instance, is what the Senate Judiciary Committee said about Bork's extremist views concerning Executive power:

In extensive writings and congressional testimony over the course of his professional career, Judge Bork has expressed a broad, almost limitless, view of presidential power, particularly with respect to the conduct of foreign affairs, and a correspondingly narrow view of Congress's ability to restrict abuses of that power. The committee believes that, when viewed as a whole, Judge Bork's views on the scope of executive power place him well outside of the mainstream of legal thought, and run directly contrary to the limits on executive power intended by the Framers. . .

Judge Bork's suggestion that the President has the inherent power to ignore such limitations is profoundly troubling. Judge Bork has expressed an exceedingly narrow view of Congress's right to participate in or restrict intelligence activities, even when such activities are conducted in the United States against U.S. residents.

Reasonable people may differ about whether particular intelligence activities are appropriate or inappropriate. But under our constitutional system of checks and balances, Congress simply must have the power to oversee and ultimately to control the ability of the Executive Branch to conduct intelligence operations. In light of the Framers' great concern about the risks presented by concentrated power in the Executive Branch, the committee finds Judge Bork's rejection of congressional limitations on such power particularly disturbing.

The committee believes that Judge Bork's views on the scope of presidential authority are troubling, not merely because those views would impose unprecedented limitations on Congress's ability to curb abuses of presidential power, but because his views in this area are the antithesis of judicial restraint. In the area of executive power, Judge Bork shows little deference to duly enacted legislation and little regard for either the text of the Constitution itself or for the principle of checks and balances that resonates throughout the document.

All this talk about respect for precedent is ironic. One of the very few things that could be called "precedent" with regard to these judicial confirmation hearings is that whatever else "out-of-the-mainstream" means, Robert Bork and his judicial philosophy clearly qualify.

Given that, isn’t it almost self-evident that a person who holds Bork up as his judicial model and lavishly praises Bork’s "understanding of constitutional history" and role of the Court in our society should be presumptively viewed as being too radical as well? At the very least, Alito should bear the heavy burden of demonstrating that he is, in material respects, a different jurist than the Robert Bork who was resoundingly condemned by the country and the Senate as being far too radical to be confirmed.

Two final points:

(1) The fact that Alito claims that he followed Supreme Court precedent when he was a lower court judge says nothing about how radical and aggressive he will be in overturning precedents once he is on the Supreme Court. Nobody suggested that Bork had failed to follow Supreme Court precedents when he was an appellate judge.

The concern that led to Bork’s rejection was that once he was on the Supreme Court -- and, for the first time, had the power to overrule Supreme Court precedents -- he would then be guided by his radical judicial philosophy to overturn some of the most important and settled cases safeguarding Americans’ basic liberties. That is the same concern about Alito, and as was true for Bork, nothing in his history as a lower court judge can assuage that concern.

(2) Alito’s defenders and the media have made much out of Alito’s stated belief in stare decisis and his agreement to uphold the rule of law, as though those statements prove that Alito is in the judicial mainstream. Here are the first three paragraphs of Bork’s opening statement to the Judiciary Committee – the very first words he spoke at his hearing:

The judge's authority derives entirely from the fact that he is applying the law and not his personal values. That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electorate or of their representatives voted for.

The judge, to deserve that trust and that authority, must be every bit as governed by law as is the Congress, the President, the state governors and legislatures, and the American people. No one, including a judge, can be above the law. Only in that way will justice be done and the freedom of Americans assured.

The past, however, includes not only the intentions of those who first made the law, it also includes those past judges who interpreted it and applied it in prior cases. That is why a judge must have great respect for precedence. It is one thing as a legal theorist to criticize the reasoning of a prior decision, even to criticize it severely, as I have done. It is another and more serious thing altogether for a judge to ignore or overturn a prior decision. That requires much careful thought.

What Bork said is almost verbatim what Alito said yesterday. That's because everyone can and does recite these cliches. Every judge, including the most radical such as Bork, believe that they are correctly applying the law and promise to have respect for precedent. But the Bork hearings already established the principle that the mere fact that a nominee comes in and pledges allegiance to stare decisis and the rule of law is meaningless. Reciting a belief in following the law is an obvious prerequisite just to get into the confirmation door, but it is not even close to being sufficient to prove that one should be confirmed to the Supreme Court.

What determines that is whether a nominee's judicial philosophy is sufficiently in the mainstream to allow confirmation. For Alito, that examination must start with his identification of Robert Bork as his judicial model.

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