Marching on Constitution Avenue: Public Protest and the Court
Most legal theorists, of course, would deny that Robert Bork's intellectual instincts and style resemble theirs and that this similarity was an important, legitimate reason for keeping him from the Supreme Court. However, in at least one respect, Bork and his critics are undeniably alike. To the extent that they can influence the content of the dialogue that formed the public aspect of the confirmation process, Bork, Tribe, and most other academics encourage the jurisprudential and doctrinal focus that I criticized in the last chapter. Bork's complaint about the process is that it became too political, and Dworkin's defense is that the Judiciary Committee in fact conducted an "extended seminar." Here, at least, is common ground on what confirmation hearings should be.
This agreement is remarkable because, while our constitutional system contemplates considerable insulation for federal judges, the nomination and confirmation provisions explicitly provide the opportunity for political influence. The belief that even this opportunity should be utilized as a seminar suggests how deep the consensus is within the mainstream about the primacy of intellect in constitutional interpretation. It follows powerfully that the irrationality and emotionality of politics should be excluded from the decisionmaking of judges after they are appointed. Near the beginning of The Tempting of America, Bork appealed to this consensus by evoking a "disturbing" image: