Cass Sunstein laments that Robert Bork is having the last laugh. Samuel Alito, he claims, holds to a view of the Constitution indistinguishable from that of Judge Bork who was refused confirmation to the Supreme Court in 1987 because he believed that the document should be interpreted according to the original intention of its framers. This appalled scholarly luminaries like Ted Kennedy and Arlen Specter who saw the right to an abortion going up in smoke if it had to actually have Constitutional warrant. Bork was slimed and subsequent nominees, who were loath to endorse the judicial propriety of Roe v. Wade, nevertheless were skittish about abjuring it. Thus, we got Anthony Kennedy and David Souter.
As Sunstein observes, however, John Roberts began a reversal of this trend:
Significantly, however, John Roberts did not follow the script set by his Republican predecessors. His overall message was much simpler: He would follow the law. At the same time, he announced, "I do not have an overarching judicial philosophy that I bring to every case." He explained, "I tend to look at the cases from the bottom up rather than the top down."
Samuel Alito largely followed Roberts's script, but at key points he was much more specific. Asked about his general approach, he said, "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption." He also said that "it is the job of a judge, the job of a Supreme Court justice, to interpret the Constitution, not distort the Constitution, not add to the Constitution or subtract from the Constitution."
Although Alito offered various qualifications, this is Bork's view in a nutshell. Remarkably, Alito's statements to this effect have received essentially no public attention....One reason may be that unlike Bork, Alito did not argue for disturbing results, such as the abolition of the privacy right. But the most important point is the development of a new script for confirmation -- one that emphasizes fidelity to law, an idea that might well include favorable references to Bork's approach to the Constitution.
This is a fundamental change, one that signals a huge victory by Republican politicians.
Imagine. Expecting judges to have fidelity to law represents a fundamental change in the way we confirm people for judgeships. No wonder the liberals are upset. Bush is filling the Court with people who will be faithful to the law instead of people who will be making it up. This must be why Hillary thinks this is the most incompetent administration in history.
