Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations

By Norman Vieira; Leonard Gross | Go to book overview

4
FIRST CRUCIAL ISSUE

Few knowledgeable observers doubted the professional qualifications of Robert Bork. By any of the conventional standards applied to judicial nominations, Judge Bork was superbly qualified for service on the Supreme Court, perhaps, as former Chief Justice Burger would say, better qualified than any other nominee in the twentieth century.1 It is hardly surprising, then, that opponents quickly focused on Bork's judicial philosophy, rather than his professional qualifications, as the basis for denying confirmation. This focus on ideology raised a crucial issue as to whether it was proper to reject an otherwise qualified nominee for ideological reasons. Senator Biden, chairman of the Judiciary Committee, which was to conduct the confirmation hearings on Judge Bork, assumed responsibility for making the case that advice and consent to judicial nominations could properly be denied on the basis of a nominee's judicial philosophy.

On July 23, Senator Biden delivered an important speech, attempting to define the terms of the confirmation debate. Biden argued that constitutional history and Senate precedents supported the rejection of Supreme Court nominees on ideological grounds. More specifically, he said that "in case after case" the Senate has "rejected technically qualified candidates whose views it perceived to clash with the national interest."2 In order to assess Biden's argument, it will be necessary to review the various nominations rejected by the Senate to determine whether the rejections were based on ideology. However, a few points may be made preliminarily.

First, it is clear that while a number of nominees have been rejected for political reasons, it was rarely the candidate's judicial philosophy that triggered the political reaction. Of the twenty nominations rejected or withdrawn during the nineteenth century, fully one-third were submitted

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