The Bork Nomination
Since the Sotomayor hearing today was pretty dull, I thought I’d revisit the Bork hearing. Specifically, I want to talk about the Oval Office Address that President Reagan gave in an attempt to save the nomination on October 14, 1987. Presidents don’t often talk about their constitutional philosophy — perhaps the best modern example was FDR’s fireside chat in support of his “Court-packing” plan. Reagan’s speech is pretty interesting though. Besides, I use RR’s radio commentaries from the 1970s as a model for my blog entries (in form they are similar), so why not talk about the man himself?
Here is the key portion of the speech:
During the hearings, one of Judge Bork’s critics said that among the functions of the Court was reinterpreting the Constitution so that it would not remain, in his words, “frozen into ancient error because it is so hard to amend.” Well, that to my mind is the issue, plain and simple. Too many theorists believe that the courts should save the country from the Constitution. Well, I believe it’s time to save the Constitution from them. The principal errors in recent years have had nothing to do with the intent of the framers who finished their work 200 years ago last month. They’ve had to do with those who have looked upon the courts as their own special province to impose by judicial fiat what they could not accomplish at the polls. They’ve had to do with judges who too often have made law enforcement a game where clever lawyers try to find ways to trip up the police on the rules.
At the local, State, and Federal levels, your voices have been heard. After years of rising crime and leniency in the courtrooms, you demanded fair but tough law enforcement, enforcement that protected the innocent and punished the guilty. And with your support, we’ve been able to turn things around in Washington. We organized a war against organized crime and a stepped-up effort against drug trafficking. It took us 3 years, but we finally got our crime bill through the Congress. But most of all, I kept a promise that I made to you when I ran for this office: that from my first day here in the White House that I would seek to nominate judges who would respect the Constitution and would protect the rights of those who become victims of crime.
Well, all of this meant hard work, but together we have turned the crime trend around. The Department of Justice just over a week ago released a study showing that crime had declined for the fifth straight year and has now reached its lowest level in 14 years. That’s something to be proud of.
So, my agenda is your agenda, and it’s quite simple: to appoint judges like Judge Bork who don’t confuse the criminals with the victims; judges who don’t invent new or fanciful constitutional rights for those criminals; judges who believe the courts should interpret the law, not make it; judges, in short, who understand the principle of judicial restraint. That starts with the Supreme Court. It takes leadership from the Supreme Court to help shape the attitudes of the courts in our land and to make sure that principles of law are based on the Constitution. That is the standard to judge those who seek to serve on the courts: qualifications, not distortions; judicial temperament, not campaign disinformation.
What I find fascinating about this is that President Reagan focused entirely on criminal procedure in his defense of originalism. He said nothing about abortion, religion, race, or the commerce clause, even though those are the topics that energize originalists today. What is the significance of this speech?
First, it is a reminder that the focus of conservative constitutionalism was on the Warren Court’s criminal cases until Roe came along. Second, it suggests how complete President Reagan’s victory was on the issues that he discussed in his speech. The ones he didn’t mention are still contested, but in the criminal realm there is now a much stronger consensus about how crime should be addressed. (To be fair, Justice Scalia takes a different view on some issues, such as the Confrontation Clause. I wonder if that runs afoul of the President’s attack on “new or fanciful constitutional rights for those criminals.”). Third, it makes the point, which I may elaborate on tomorrow, that originalism has more in common with the 1960s than with the 1780s.