06.30.2010 0

Can Kagan get Borked?

As the U.S. Senate continues hearings on the nomination of Elena Kagan to the U.S. Supreme Court this week, it is worth recalling how well-credentialed Judge Robert Bork was for the position that he was ultimately denied. President Reagan discussed Bork’s nomination in his July 4, 1987 radio address which is as follows:

Certainly freedom is something I had in mind this week when I nominated Judge Robert Bork to be an Associate Justice of the Supreme Court. Judge Bork is recognized by his colleagues and peers as a brilliant legal scholar and a fair-minded jurist who believes his role is to interpret the law, not make it. He is also a highly respected teacher, having devoted 15 years as a distinguished professor at one of this nation’s most prestigious law schools.

As a member of the United States Court of Appeals, Judge Bork has always heard each case with an open mind, following the law and legal precedent-not his personal preferences. In arriving at a decision, no appellate judge in America has a finer record. Not a single one of his more than 100 majority opinions has ever been reversed by the Supreme Court. To maintain the independence of the judiciary, I hope that we can keep politics out of the confirmation process and promptly schedule hearings. The American people deserve a Supreme Court with nine Justices operating at full strength. This, of course, is serious business because the Court plays such a significant role in the preservation of our way of life and the protection of our liberty.

Unfortunately, the nomination process began greatly politicized as a result of the Bork hearings. Subsequent nominees are selected on the basis of a slim paper trail so as to avoid Senate scrutiny. The downside is the presidents from both parties appear inclined to pick nominees who are much less qualified. – Harriet Miers and Elena Kagan both come to mind.

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