A Chequer-Board of Nights and Days

Robert Bork is tremendously displeased with the Miers nomination:

TUCKER CARLSON, MSNBC HOST: Are you impressed by the president’s choice of Harriet Miers?

JUDGE ROBERT BORK, FORMER SUPREME COURT NOMINEE: Not a bit.  I think it’s a disaster on every level.

CARLSON: Why?  Explain the levels on which it’s a disaster.

BORK: Well, the first one is, that this is a woman who’s undoubtedly as wonderful a person as they say she is, but so far as anyone can tell she has no experience with constitutional law whatever.  Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already.  So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by.  I don’t expect that she can be, as the president says, a great justice.

But the other level is more worrisome, in  a way:  it’s kind of a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years.  There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the original principles of the Constitution.  And all of those people have been overlooked.  And I think  one of the messages here is, don’t write, don’t say anything controversial before you’re nominated.

It’s odd that Justice  Roberts, who is now the chief justice, and who will probably be an excellent choice in many ways, also had no track record that was easy to follow.

CARLSON: Yes.

BORK: Now this woman, who has even less of a track record.

CARLSON: None at all, it seems like.  But her defenders — flaks from the White House, some of whom we’ve had on the show —

BORK: Flaks, eh?

CARLSON: Flaks, you know, professional spinners.

BORK: I know the word, I just was interested in this.  Go ahead.

CARLSON: Yeah, that’s essentially what they are some decent people, but repeating a line that’s been devised by the PR office of the White House — claim that she is a great pick because she brings diversity of experience.  Not only is she a woman, and that supposedly — for reasons I don’t quite understand — is very important, but beyond that, she has followed a different path than most Supreme Court nominees.  She hasn’t been a judge, et cetera.

Is there any truth that that’s an important qualification?

BORK: No, I think not having been a judge is all right.  A lot of justices hadn’t been judges before.  But I think this idea that it’s important to have a woman’s perspective, or something of that sort, begins to treat the Supreme Court like a legislature, in which everybody has to be—all groups have to be represented in some way.  And that’s exactly the wrong message to send.

The court is not supposed to be a legislature.  It’s been a legislature for too much of our history.

CARLSON: Right.  I was fascinated to see the president, at his news conference the other day, tell a reporter that in his many conversations with Harriet Miers, going back more than a decade, he’d never discussed the question of abortion.

When you were nominated for the Supreme Court, did you discuss with President Reagan, or anybody in his administration, your specific views on Roe v. Wade, or other issues that might come before the court?

BORK: No, I didn’t have to because I had them all in writing, which was my mistake.  The Book of Job says, “Oh, that my adversary had written a book!”  Well, if you write a book or articles as I had, you give hostages to fortune.  So they didn’t have to ask me; they knew where I was.

CARLSON: But do you think they should — I mean, as a non-lawyer, it seems to me obvious that the president would want to sit her down and say, you know, here are the important questions that might be raised on the Supreme Court — what do you think of them?  Everyone pretends, or says, that that’s somehow verboten; you’re not supposed to do that.  What do you think of it?

BORK: I think it’s ridiculous, because the president is not supposed to ask the nominee, but the senators all drill the nominee endlessly about his or her positions on various issues.  Why the senators should be allowed to do that and the president shouldn’t be, I don’t know.  But I wish the president wouldn’t ask her, how will you vote on this case, but try to ask her what materials do you consider relevant to deciding this case?

It is difficult to overstate the importance of this negative commentary. Robert Bork remains a revered figure for movement conservatives and even for some right-of-center libertarians (even though Bork moved away from the libertarian position on a whole host of issues while he was teaching at Yale Law School). His comments give cover to those on the Right seeking to sink the Miers nomination. If I were a political strategist in the White House, I would be quite concerned about the reaction this will engender.