Passing of a Giant, Robert Bork

Statement of Committee for Justice President Curt Levey on the passing of Judge Robert H. Bork:

The nation has lost an intellectual and moral giant with the passing of Judge Robert Bork this morning.

His passing sadly reminds us of how much we lost in 1987 when, upon Judge Bork’s nomination to the U.S. Supreme Court, the political opportunism and shameful behavior of a number of senators blocked his confirmation. “Borking” was introduced to the English language as a term for unleashing the politics of personal destruction on an otherwise qualified nominee.

The integrity of judicial confirmations and, indeed, the very spirit of politics in Washington have suffered as a result of what was done to Judge Bork.  Even many liberal observers concede that the politicized confirmation process and content-free confirmation hearings so bemoaned today are rooted in Judge Bork’s defeat.  Today’s vacuous confirmation hearings make Judge Bork’s honest and highly substantive testimony in 1987 before a hostile Senate Judiciary Committee – headed by Sen. Joe Biden – seem even more courageous than it did 25 years ago.

Judge Bork’s tremendous courage and integrity, along with his towering intellect, would have ensured his place as one of the great U.S. Supreme Court Justices. But that would only have capped off what otherwise stands as one of the great legal careers in American history, encompassing both his scholarly work as a Yale Law School professor and the author of several legal books and his service to his country as Solicitor General of the United States and a D.C. Circuit judge.

However, Judge Bork’s greatest contribution to the law cannot be found in any one position he held.  Instead, he will long be remembered for transforming American law through his intellectual and moral leadership in the battle against the standard-less “living Constitution” approach to American jurisprudence that had become so fashionable in the middle of the twentieth century.

Judge Bork was a hero and inspiration to those of us who will continue the battle against judicial activism, in which judges “arrive at results by announcing principles that were never contemplated by those who wrote and voted for the law,” said Bork. Though we mourn his loss, we are grateful for his life and his contribution to the law, which will live on beyond the years of the younger lawyers and scholars he inspired.

Our thoughts and prayers are with Judge Bork’s family.

Justice Sotomayor and Murderer Advocacy

I have a critique of Justice Sotomayor’s media-ignored but highly revealing Dec. 3 dissent seeking mercy for twice-convicted triple-murderer Benny Lee Hodge. The dissent deserves attention for what it says, what it implies and what it disregards. It is a graphic illustration of the grave danger of confirming justices whose values are contrary to those of a vast majority of the public – and have no scruples about rewriting the Constitution to contain commands nowhere within the actual written document.
 
Sotomayor’s dissent is a call for a highly organized campaign to inform the public about how justices have abused what Justice White famously termed their “raw judicial power” and to vigorously oppose placing more justices such as Sotomayor on the Supreme Court (and lower courts).
 
Essentially, Sotomayor takes the position that "especially heinous" murders cannot and need not be "explained" but can and should be "mitigated," in a quest to find “at least one juror” who can be persuaded to show “respect” and “mercy” for a brutal killer who celebrated slaughtering his victims without mercy. In lecturing the Kentucky Supreme Court that this has been “clear” for 30 years, Sotomayor implicitly admits that it had never been “clear” before that – for the very good reason that such judicial concoctions never before existed because they were and are not in the Constitution.
 
In arguing for “mitigation” and “mercy,” Sotomayor is less than forthright. She complains of "deficient" attention to Hodge's abused childhood by his lawyer in the appealed death sentence for a single murder before the court. However, she omits that Hodge is actually facing two death sentences from two trials, for three premeditated murders and one attempted murder on two separate occasions 27 years ago, not one death sentence for one murder. And she omits that in the trial resulting in the other death sentence, Hodge’s lawyers presented “substantial” so-called mitigation evidence, including referring to his abused childhood.

SCOTUS Gay Marriage Cases

Statement of Committee for Justice President Curt Levey on the DOMA and Prop 8 cases:

We applaud the Supreme Court’s decision today to review two very important cases concerning California’s prohibition of same-sex marriage (Proposition 8) and Section 3 of the Defense of Marriage Act, which codifies federal non-recognition of same-sex marriage. The Second and Ninth Circuit decisions below – striking down a traditional definition of marriage as a violation of the Constitution’s Equal Protection Clause – are outrageous examples of judicial activism that damage the rule of law, regardless of whether gay marriage is good or bad policy. Only the U.S. Supreme Court can undo the damage.

How the Supreme Court will rule in these two cases is difficult to predict and will depend largely on Justice Kennedy. However, because judicial activism has been the rule rather than the exception in the lower courts when it comes to same-sex marriage, the Supreme Court is more likely to improve the state of the law on this issue than to worsen it.

Moreover, if personnel changes on the Supreme Court during President Obama’s second term alter the chances for a sound ruling on this issue, it will be in a negative rather than positive direction. Accordingly, the rule of law is best served by the High Court deciding the gay marriage issue now rather than later. In its orders granting review today, the Court clearly left itself room to sidestep the marriage issue by disposing of these cases on jurisdictional grounds. We hope the Justices don’t take that non-committal route.

Finally, see “Gay Marriage: What the 9th Circuit was Really Thinking,” our popular response to the Ninth Circuit’s February 7 decision striking down California’s same-sex marriage ban.