Robert Bork has announced that he will oppose the nomination of Elena Kagan for the Supreme Court. The earth did not shake. Bork was Ronald Reagan's nominee for the Supreme Court who was rejected by the Senate in 1987. He is an embittered man who will be even more disconcerted than I was to learn that the very bright and well-educated, but young, editors of The Atlantic Wire had never heard of him.
The Bork nomination was an epic political battle that Linda Greenhouse, dean of Supreme Court reporters, once compared with the Alger Hiss case in terms of its symbolic importance--Hiss to the left, Bork to the right. (Alger Hiss, children, was...oh, go Google him for yourselves.) The verb "to Bork" means using extreme, unfair tactics to stop a president's nominee for a big government job. Conservatives remember Bork as a victim of unscrupulous Democrats. In fact, the Bork hearings were, for the most part, quite cerebral, as Bork was forced to defend his philosophy of "originalism" and its application to things like the Civil Rights Act. Bork warned that if he went down, the effect on vigorous legal debate would be devastating because anyone who aspired to the Supreme Court would fear leaving a "paper trail." Actually, Bork's own paper trail was shockingly thin. Although conservatives and Republicans insisted that he was one of the greatest Constitutional Law thinkers of the century, he never even published a book on the subject (except for a screed about his failed nomination which didn't come out until afterwards). But Bork's prediction has turned out to be somewhat true. Kagan's lack of any publicly known position on almost any major issue was a big factor in her favor with the Obama team, apparently. (I think the solution to this dilemma is to end the tradition that allows Court nominees not to reveal their beliefs about legal issues except in the broadest terms. My law school classmate Stuart Taylor disagrees. Since Stuart graduated number one in our class and I, to say no more, didn't, you probably should buy his argument, not mine.)
Bork's "originalism" remains to this day the official Republican party line on how the Constitution should be interpreted. Many Democrats pay obeisance to it, though Bork would say they're faking. It will undoubtedly come up in the Kagan hearings, and she undoubtedly will swear allegiance to it in some form. So in case you're too young (or too old) to remember the Bork hearings, here is a brief but tendentious primer on "Originalism."
It seems unarguable: what matters is the original intent of the framers. Shouldn't any legal document--a will, a contract--be interpreted to mean what the author(s) intended it to mean? It's almost a tautology: the authors intended for their intentions to be fulfilled. In the case of the Constitution, binding the hands of future rulers on a few transcendent issues is its very purpose. If they don't have to follow the intentions of the folks who wrote the document they're interpreting, judges become unelected dictators, imposing their personal preferences on an often unwilling public. To be sure, a document like a will can be explicitly voided or overturned for public policy reasons--if, say, it creates a scholarship open only to white people. But you can't overturn the Constitution, except by amending it--a purposely difficult process. So when interpreting the Constitution--the main job of the Supreme Court--how can you legitimately do anything except attempt to determine and honor the intent of the people who wrote it and voted for it?
But (wouldn't you know) it's not that easy. Interpreting the wishes of people who've been dead for a couple of centuries is a challenge, as is weighing the varying intentions of the politicians who wrote and voted for the Constitution and the Bill of Rights. Bork would have no problem with this: interpreting intentions as best you can is what courts are supposed to do. But what if evidence of the framers' intentions is just too murky or slight to reach any conclusion about them? "The Framers seem to have had no coherent theory of free speech," Bork once wrote, and asserted that this allowed judges to simply make one up. Bork chose one that was highly restrictive. He didn't feel the need to explain why, intention-wise.
There are phrases in the Constitution, like "cruel and unusual punishments" or "unreasonable searches and seizures," that seem like a conscious passing of the buck to future generations. Originalism enthusiasts will say that such-and-such a punishment can't be unconstitutionally "cruel and unusual" because it was widely used when the Constitution was born. But why isn't that famous phrase an invitation for each generation to define "cruel and unusual" for itself? If they had wanted to be more specific, they could have been.
The strength of Originalism comes from its seeming simplicity and clarity. You want desegregated schools or legalized abortion or gay marriage. Show me where those things are in the Constitution. Not there in so many words? Then they ain't there at all. Actually, you would be hard-put to find a self-proclaimed Originalist politician who would publicly disown Brown v. Board of Education, the school desegregation case, though they would have a very hard time justifying it by their own proclaimed standards. Other apparent constitutional free-throws, according to Bork, include rights relating to "government processes," and rights that are "applying an old principle to a new understanding of a social situation." At this point, the exceptions have swallowed the rule, and spit it out again.
In short, Originalists have a theory, which they apply with varying consistency--just like those who take a more expansive view of the Constitution. Where does Elena Kagan stand on this spectrum? I guess we won't be finding out soon.
More From Michael Kinsley
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The Envelope, Please (6/16)