The Judge Steps Out

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In this year’s vice-presidential debate, millions of Americans got to see U. S. Sen. Joseph Biden, D-Del., explain what he is looking for in a Supreme Court Justice. As chairman of the Senate Judiciary Committee, he gets to act on these convictions whenever a president nominates a candidate for one of the nine seats on the highest court in the land.

As a long-time member of that committee, Sen. Biden has grilled many Supreme Court nominees, such as Robert Bork, whose nomination President Ronald Reagan sent to the Senate in 1987. “Had he been on the court, I suspect there would be a lot of changes that I don’t like and the American people wouldn’t like, including everything from Roe v. Wade to issues relating to civil rights and civil liberties,” Sen. Biden said in the debate with Alaska Governor Sarah Palin. “And so that—that—that was one of the intellectual changes that took place in my career as I got a close look at it.”

“And that’s why I was the first chairman of the Judiciary Committee to forthrightly state that it matters what your judicial philosophy is,” Sen. Biden said in the televised debate. “The American people have a right to understand it and to know it.” Last month, an audience at the Heritage Foundation got to hear all about Judge Bork’s philosophy, from the retired jurist himself.

The Center for Legal and Judicial Studies at Heritage selected the Honorable Rorbert H. Bork as the inaugural speaker in October to talk about the United States Constitution and the Judiciary process in America. Robert Heron Bork, born March 1, 1927, was a circuit court judge for the District of Columbia Court of Appeals between 1982 and 1988.

“From the beginning there were doubts about the solidity of the Republic,” Justice Bork explained. “Franklin was right to suggest that the success of the Republic was contingent, not at all guaranteed: so it is, so it was, and so it will always remain.”

Speaking critically, Justice Bork explained that “America did not invent the idea of the Republic or its indespensible ingredient the rule of law, but it did invent an independent judiciary that could correct other branches of government when they strayed from the principles contained in the Constitution. Never mind that the power of judicial review is no where mentioned in the Constitution, itself or that the Power of judicial review was established in a very dubious fashion, in Marbury v. Madison in which the courts lacked jurisdiction and distorted the law out of shape in order to establish Judicial Review.”

Next, Justice Bork claimed that “today no one questions the propriety of judicial review.” He said, “It was a great institution created, great in a sense that it was capable in doing great good, it was capable in keeping the nation on the path indicated by the Constitution. But, it was also a dangerous institution, if it was not correctly comprehended, as it has often not been.”
Further, Justice Bork explained that “perhaps now, we can argue that we are now failing to comprehend both the genius of the institution of judicial review and its proper limits.” Bork, also honed in on two significant trends which he believes have brought our judicial system to the chaos that we experience today: “first, the damage done and being done to the Republic by an activist Judicial Branch and second, the corruption of the Senate’s confirmation process.”

As noted earlier, he experienced the latter of these first-hand. As to the former, Bork argued that “Congress has repeatedly overstepped its limits and so has the President” but “The American disease is courts making up the law and claiming that it was their duty to do so.” Continuing, Bork explained that America is not alone in experiencing a very compromised judicial system. Bork said, “Canada soon found that it is not an American disease, but a judicial disease.”

Justice Bork said, “the court when purporting to speak in the name of the Constitution is the only institution in America, public or private that claims finality when it speaks, which makes it particularly a large prize politically.”

“The rule of law is essential to the Republic,” Justice Bork said. In the end, Justice Bork argued that a judge should remain neutral in his judgments and should not make judgements based on individual preferences, but guided by the United States Constitution.

Irene Warren is an intern at the American Journalism Center, a training program run by Accuracy in Media and Accuracy in Academia.