There is no verb to describe what Bork did to Miers
Wikipedia: “According to the New York Times, the verb to bork might be defined as ‘to destroy a judicial nominee through a concerted attack on his character, background and philosophy’.” Judge Bork did not do that to Harriet Miers in his WSJ piece — he complimented her character. Otherwise, it was a straight-up borking:
Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until Ms. Miers’s performance at her hearing tells us more about her outlook on law, but any significant revelations are highly unlikely. She cannot be expected to endorse originalism; that would alienate the bloc of senators who think constitutional philosophy is about arriving at pleasing political results. What, then, can she say? Probably that she cannot discuss any issue likely to come before the court. Given the adventurousness of this court, that’s just about every issue imaginable. What we can expect in all probability is platitudes about not “legislating from the bench.” The Senate is asked, then, to confirm a nominee with no visible judicial philosophy who lacks the basic skills of persuasive argument and clear writing.
But that is only part of the damage Mr. Bush has done. For the past 20 years conservatives have been articulating the philosophy of originalism, the only approach that can make judicial review democratically legitimate. Originalism simply means that the judge must discern from the relevant materials–debates at the Constitutional Convention, the Federalist Papers and Anti-Federalist Papers, newspaper accounts of the time, debates in the state ratifying conventions, and the like–the principles the ratifiers understood themselves to be enacting. The remainder of the task is to apply those principles to unforeseen circumstances, a task that law performs all the time. Any philosophy that does not confine judges to the original understanding inevitably makes the Constitution the plaything of willful judges.
By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of “Don’t ask, don’t tell” admonition to would-be judges. It is a blow in particular to the Federalist Society, most of whose members endorse originalism. The society, unlike the ACLU, takes no public positions, engages in no litigation, and includes people of differing views in its programs. It performs the invaluable function of making law students, in the heavily left-leaning schools, aware that there are respectable perspectives on law other than liberal activism.
Surely this broadside from the right cannot be helpful to the Miers nomination, whether you think that Judge Bork is a right-wing nut or not. Furthermore, this comes on top of the strange revelation that “Harriet Miers, as a Dallas City Council candidate in 1989, backed amending the U.S. Constitution to ban abortion except to save a mother’s life, papers given to the Senate on Tuesday showed.” That seems to us the worst of all possible worlds: for conservatives, it says nothing about whether she would overturn Roe as a judicial matter; for the Left, it provides an absolutely valid and legitimate opening to question Miers closely about a subject in a way that she cannot slough off with the bromide about not discussing potential future cases. David Frum agrees:
[F]or both philosophical reasons and for reasons of self-protection, judicial conservatives have argued that nominees should be judged not on their inward conscience, not on their religion or their personal views of abortion, but on their judicial philosophy and their record. This stance has served both the nation and conservatism well. Now in an effort to salvage the Miers nomination, the White House is jettisoning it.
In its eagerness to regain faltering conservative support for the Miers nomination, the White House has suggested that her religion and her personal views on abortion be treated as relevant information. Indeed, since there is so little else to recommend Miers, the White House is arguing that Miers’ religion and personal views on abortion be treated as the most relevant information.
But if this information is relevant for Miers, it is relevant to all judges. Which would mean, if this unwise nomination goes forward, that from now on, every Catholic nominee, every Evangelical nominee can legitimatly be quizzed about their faith and their personal views of morality. And it won’t be just abortion that will be fair game. They can in that case be expected to be asked about their view of homosexuality, their attitudes toward prayer, and on and on.
With every passing day, this nomination is laying down precedents that conservatives will regret for the next half century.
This situation keeps getting squirrelier and squirrelier, with the oddest bit in the last day or two the contretemps between Miers and Specter on the Griswold case, in which either she cannot speak clearly, Specter cannot hear clearly, or both.
October 19th, 2005 at 5:07 am
The attacks on life-long conservatives, whether pols, pundits or judges, such as Bork, by the loyalists to King George, are quite the thing to experience. The methods they use are often those utilized by the character assassins on the left, but are now techniques acceptable, to be used against fellow Republicans.
This spectacle if not so disgustingly sad, would be funny if the Dems were doing it.
Nothing is sillier than those who attack pundits whose every word was thought, by these very same people, as gospel, and whose wisdom was quoted daily, as in “Coulter said,” or “George Wills” reminded us…”, and now at the drop of a hat, these life-long sages have apparently become idiots!