Roberts' road to confirmation

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The first U.S. Supreme Court confirmation hearing in more than a decade is only weeks away. 

Former Supreme Court nominee Robert Bork knows firsthand how bruising the process can be.  His nomination was blocked 18 years ago by a well organized liberal campaign.  More recently, he edited a book on the Supreme Court, .

Bork joins 'Hardball' guest host David Gregory to discuss whether new Supreme Court nominee John Roberts will share a similar fate.

DAVID GREGORY, ‘HARDBALL’ GUEST HOST: Judge Bork, why, in your judgment, were you blocked to the Supreme Court? 

ROBERT BORK, FORMER SUPREME COURT NOMINEE: I think they were afraid I would be the fifth vote to overturn Roe against Wade. 

GREGORY: Simple as that? 

BORK: I think that was the main driving force.  I should say about that, if you allow me a point of personal privilege, that four Supreme Court justices, Stevens, White, Chief Justice Burger, Thurgood Marshall, all said I should have been confirmed.  Now, that doesn’t square with what Kennedy said about me. 

GREGORY: Were you then or are you now outside of the mainstream, your judicial philosophy? 

BORK: Where’s the mainstream?  I think the mainstream has always been that you interpret the Constitution according to the principles of the people who made it law understood themselves to be enacting.  But that’s now described as outside the mainstream.  But a lot of this is just attack rhetoric.  People will say anything. 

GREGORY: When you look back at the process, do you think that you could have done anything differently or those who were defending you could have done something differently that would have changed the outcome? 

BORK: Both cases.  I could have been better at what I said at the hearings. 

GREGORY: How so? 

BORK: Well, you know, at the end, I made that infamous remark about the fact that being on the court would be an intellectual feast, which it would have been.  But that wasn’t regarded as a politic thing to say. 

GREGORY: What did you mean at the time? 

BORK: I meant I would find it extremely interesting to work on the problems of the court.  But, also, there was no support.  The campaign was all on the other side.  They spent millions of dollars in ads and TV commercials and so forth, I must say, misrepresenting my positions and my record.  And our side had nothing of that sort at all.  So, it was a very one-sided campaign.  And the only person speaking for me was me. 

GREGORY: Your detractors had been able to speak out against you really for an entire month that summer prior to your hearing.

BORK: That’s right.  I think it was more than a month, yes. 

GREGORY: When you read, in the run-up to the nomination of Judge Roberts, the shadow of Robert Bork over the process, do you view that now as a helpful thing or an unhelpful thing to the process now? 

BORK: The process has become thoroughly corrupt, because it’s become politicized. 

Of course, the Supreme Court invited that.  The Supreme Court has gone off outside the actual Constitution; the majority of them have, outside the actual Constitution to make essentially political and cultural decisions.  Now, once you do that, once you make yourself a political institution, you’re going to have a political fight over it, to get control of it. 

GREGORY: Give me two prominent examples in your mind where this court has not faithfully interpreted the original intent of the Constitution? 

BORK: Well, the most famous example is Roe against Wade.  There’s nothing in the Constitution about abortion, either pro or con. 

And a lot of people don’t understand that.  They think, if you overrule Roe against Wade, that abortion becomes illegal.  It does not.  It simply goes back to the states, where it always has been, up until Roe against Wade, for decisions by the moral choice of the American people.

The other areas are clear.  Pornography is one, the protection of pornography by the First Amendment, the religion decisions, trying to erase religion from our public arena.  I think you could go on with these things.  There’s a lot of them. 

GREGORY: How would America be different had Robert Bork been confirmed to the Supreme Court? 

BORK: America would be different in the sense that Roe against Wade would have been overruled and the issue would have gone back to the people and their legislators, instead of judges. 

GREGORY: You didn’t consider it settled law? 

BORK: You know, Plessy against Ferguson announced a separate-but-equal doctrine as far as blacks and whites were concerned, was overturned after I forget how many years.  That was back in the 1800s someplace.  And that was overturned in 1954 by the Supreme Court. 

Now, you can say Plessy was settled law.  It was also wrong law.  And it got overturned.  You know, it’s been true for throughout the history of the court that, if a decision has been wrong, the court does not necessarily regard it as binding precedent.  The reason for that is quite simple.  When the court makes a mistake or when the court abuses the Constitution, nobody can correct it except the court. 

GREGORY: Now let’s talk about Judge Roberts, whose hearings will begin on September 6.  This is an answer that he provided on a questionnaire to the Senate Judiciary Committee talking about precedent, settled law, as he described Roe v. Wade. 

He writes the following: “Precedent plays an important role in promoting the stability of the legal system.  And a sound judicial philosophy should reflect recognition of the fact that the judge operates within a system of rules developed over the years by other judges, equally striving to live up to the judicial oath.”

You’re not much of a believer in the role of precedent in constitutional law.  Is your view of his answer on the question of Roe v.  Wade that he would see it as settled law, would not want to overturn it? 

BORK: I have no idea.  I think we’re going to find out in the confirmation hearings.  At least, they’re going to try to find out in the confirmation hearings.

But precedent is important.  And before you overturn a decision, you ought to be very careful and make sure you think you’re right.  But if you think the other court has gone overboard, there’s no reason to keep doing the wrong thing. 

GREGORY: You know Judge Roberts? 

BORK: Yes. 

GREGORY: Have you advised him on this process? 

BORK: No.  That’s like asking George Armstrong Custer to advise how to deal with the Indians. 

GREGORY: But your experience can teach a lot.  You believe that this is a system that is essentially corrupt, in terms of the confirmation process.

BORK: Yes, sir.

GREGORY: But how would you advise him?  Do you think he faces a difficult challenge ahead? 

BORK: He has to devise a way, I hope, and I think he will, to avoid answering what he would do in particular cases. 

Now, he has an advantage that he hasn’t written much that anybody can pick on, so he doesn’t have to answer, really.  In my case, I had written a great deal and it was being misrepresented.  So, I had to go into the issues.  But I would advise him not to go into the issues.  And Ruth Bader Ginsburg did not go into the issues. 

GREGORY: Do you think that you could ever be confirmed, even if you had acted differently during the hearings, if you had had better support from those who put you up?  In other words, can somebody like yourself, with strong views, who has documented them and discussed them, can you break through a process that is, by its nature, political? 

BORK: I think, if your party controlled the Senate, you could.  And, in my case, the Democrats controlled the Senate. 

It’s a hard thing to break through.  If you keep talking about the original understanding, a lot of people are upset because they have decisions they like very much, even though they don’t come out of the Constitution, really, and they don’t want to see them overturned. 

GREGORY: Do you think this president can be confident in the fact that he has not nominated an activist judge? 

BORK: I very much doubt that John Roberts will invent new constitutional rights out of whole cloth, as had been done in the past. 

What I’m not sure about, and we’ll find out, is whether he’ll have the gumption to go back and try to undo some of the very bad decisions of the past. 

GREGORY:  In other words, you’re concerned that his view about stability, the role of stability, in the life of America, may trump better judgment about the Constitution.

BORK:  Well, that is a problem. 

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