Why Popular Opinion Should Not Be Allowed to Select Justices

The Washington Times (Washington, DC), October 10, 2004 | Go to article overview

Why Popular Opinion Should Not Be Allowed to Select Justices


Byline: Bruce Fein, SPECIAL TO THE WASHINGTON TIMES

Michael Comiskey, an associate professor of political science at Penn State University, writes complacently in "Seeking Justices: The Judging of Supreme Court Nominees" about the routine Senate vetting of nominees for judicial philosophy and public popularity. His complacency is misguided. The Senate confirmation process should be modified to provide greater insulation from uninformed popular opinion. An unprecedented 10 years have elapsed with no vacancies since the 1994 appointment of Justice Stephen Breyer; at least one seat is likely to open during the next White House term. The topic of confirmation is thus timely.

The process for appointing justices was revolutionized for the worse with the nomination and defeat of Robert H. Bork in 1987. He arrived before the U.S. Senate with the most glittering credentials since the appointment of Chief Justice Charles Evans Hughes in 1930: He was an acclaimed teacher and author in antitrust and constitutional law; solicitor general of the United States; an unsung Watergate hero who had insisted on the appointment of a credible successor to special prosecutor Archibald Cox to investigate President Richard M. Nixon; and he had a sterling record as a judge on the U.S. Court of Appeals for the District of Columbia circuit.

In 1986, Justice Antonin Scalia had been unanimously confirmed by the Senate, and Mr. Bork had voted with the associate justice in 400 of the 402 cases when the two had sat together on the court of appeals. Moreover, Democratic Sen. Joseph Biden, chairman of the Senate Judiciary Committee in 1987, had opined to the Philadelphia Inquirer after Mr. Scalia's confirmation that Mr. Bork would be an acceptable appointment if a new Supreme Court vacancy opened, which it did with the retirement of Justice Lewis Powell.

Mr. Bork's exacting intellect would have made an inestimable contribution to constitutional law. Like physics, which was transformed by the geniuses Isaac Newton and Albert Einstein, enlightened constitutional jurisprudence has been the handiwork of a few giants. They include Chief Justices John Marshall and Charles Evans Hughes and Associate Justices Oliver Wendell Holmes and Louis D. Brandeis. Mr. Bork promised to add to this priceless pantheon.

But his nomination by President Ronald Reagan was defeated by a 58-42 negative vote. Mr. Bork's detractors disliked his judicial philosophy that would confine judges to deciding cases according to the original meaning of the Constitution. That judicial modesty presaged an overruling or narrowing of precedents whose political results his opponents applauded. They also stirred public discomfort with the nominee by distorting his views.

Sen. Edward Kennedy's malediction was emblematic: "Robert Bork's America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens of whom the judiciary is - and is often the only - protector of the individual rights that are at the heart of our democracy."

Mr. Comiskey argues that a muscular Senate role in confirming nominees, with public popularity an influential supporting actor, would be undisturbing to the Founding Fathers.

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Why Popular Opinion Should Not Be Allowed to Select Justices
Settings

Settings

Typeface
Text size Smaller Larger
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.