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Chemerinsky�s Folly

September 1, 2005 2:59 PM

Now that Steve has his blood aboiling, what shall I be able to do to calm him down on this matter? Surely there are some approaches that I could take that would be bound to fail. I could argue that Chemerinsky is right that the sole, or even main, source of opposition to Bork was that he did not wish to protect marital privacy, took a narrow view of the first amendment, as well as the equal protection clause. But I was not comatose during the entire summer and fall of 1987 when the opposition reached a frenzy that is now captured in a verb that has unambiguous social meaning. To �Bork� someone is to engage in a full-fledged all-out, no-holds barred campaign of vilification. It involves taking hold of the hearings on the one hand, and using vicious ad campaigns on the other. Ted Kennedy�s speech, �in Robert Bork�s America,� was not confined to the erudite issues that Erwin mentioned. I don�t think that anyone should accept his crude efforts to sanitize what was, when all was said and done, one of the sorrier episodes in our history.

Perhaps I should then switch tacks, and tell Steve that the opposition in this case is principled because Roberts is likely to be to the right of O�Connor in some way that the Democrats oppose. I suspect that this will be true on some issues, but I am not quite sure how to read that. If Lopez is one of the arch sins of modern constitutional law, then O�Connor must stand convicted in the dock with Roberts, so that she could not be confirmed either. But those nasty details aside, the real point here is that Chemerinsky takes the view that Roberts should not be confirmed because he may prove to be to the right of Kennedy, even if it turns out, as also seems likely, that he will be to the left of Thomas, Scalia, and Rehnquist.

Oh? I can�t persuade Steve on this one. The clear implication of all train of thought is that the Court may move to the left, but it cannot move to the right. Now oddly enough, I do not necessarily agree with Steve on the substantive issues. I would have upheld affirmative action in Grutter and have more sympathy for the libertarian angst in Lawrence than does Steve. But I think that it would be grotesque to take my own far-out views and use them as a litmus test for deciding who makes it over the barrier or not. I think that we have to accept that the political process gives the President some sway over the direction of the Court. The Democrats have to count themselves lucky that the justices we have appointed over the past 50 or so years, on balance, have been more liberal than the presidents who appointed them. But that cannot go on forever. To shape the Court you have to win elections, and for Democrats that means moving away from Chemerinsky, not toward him.

So if Steve is right to balk at these efforts at calming his nerves, perhaps I have one last shot. What would happen if Roberts is turned down? I think that we could easily see that the President would nominate someone whose conservatism is of a deeper dye than Roberts. In a word, I think that in some sense the Machiavellian Republicans could then beat up on Democrats for a vicious partisan fight based on nothing more than a decided political preference that someone, who is to the left of three sitting justices, is too conservative to sit on the Court. I don�t believe that the Democrats will want to commit hari-kari. Erwin is a lone voice. May he long shout in the wilderness.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.