The Mormon angles in the Bork battle

Before Sonia Sotomayor and before John Roberts there was Robert Bork.  I was living out of the country in 1987, when Borked got “Borked” by the Dems and Arlen Specter, but I remember reading about the battle and occasionally seeing TV clips of Bork’s testimony.

But it was not until I picked up “Battle for Justice,” a well-written, very fair book by NY Times editor Ethan Bronner that I knew there were some Mormon angles to Bork’s life.

The first angle came early in Bork’s career when he worked for a prominent Chicago law firm.  A man who happened to be Jewish came for an interview, and another associate overheard a partner saying they couldn’t hire him because of the “Jewish quota.”  The firm already had too many Jews.  That associate, none other than future Mormon Apostle Dallin Oaks, came to Bork to protest the Jewish quota.  Bork’s first wife was Jewish, and Bork and Oaks successfully convinced the firm to end the Jewish quota and hire the man.

So, here we have a young Mormon attorney and Robert Bork fighting against anti-semitism.  Pretty cool.

The other interesting angle was that the Reagan administration’s second choice — after Bork — for the 1987 Supreme Court opening was…Orrin Hatch, the Mormon senator from Utah.  Liberal groups at that time hated Hatch and were very afraid he would be impossible to oppose because of senatorial courtesy.  But Bork was the most prominent conservative jurist at the time, and Hatch never got a chance to be nominated.

So, in the 1980s, we actually had a chance to have the first Mormon Supreme Court justice.  After Bork was defeated, Pres. Reagan nominated Anthony Kennedy, a much more moderate justice who was not as much of a lightning rod for liberal opposition.  As you may know, Kennedy has been a true centrist on the Supreme Court and is still there.

Anybody interested in the Sotomayor nomination or indeed interested in the Supreme Court in general should re-read about Bork’s unsuccessful nomination.  Conservatives feel Bork was unfairly treated, and it is true that at least half the things written and said about Bork were gross distortions of his record.

But reading the history also shows that Bork’s worst enemy was himself.  His testimony at the senate hearings was inconsistent and rambling.   If you compare Bork’s testimony to John Roberts or Sam Alito, you see a huge contrast — Bork was pompous and combative, whereas Roberts and Alito were scholarly and non-controversial.  Both Roberts and Alito have turned out to be just as conservative — and more effective — than Bork would have been.

Still, Bork was clearly qualified for the court and did not deserve being turned down, any more than Sotomayor deserves to be voted down now.  Elections have consequences, and Pres. Reagan should have been able to put his man on the Supreme Court, just as Pres. Obama should be allowed to put his woman on the court.  So, I hope we as a nation have learned something from the Bork nomination.

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About Geoff B.

Geoff B graduated from Stanford University (class of 1985) and worked in journalism for several years until about 1992, when he took up his second career in telecommunications sales. He has held many callings in the Church, but his favorite calling is father and husband. Geoff is active in martial arts and loves hiking and skiing. Geoff has five children and lives in Colorado.

22 thoughts on “The Mormon angles in the Bork battle

  1. I disagree, Geoff. Sotomayor is too far out from the mainstream. The supreme court is not like appointing a department head, where the courtesy is to let the Pres have his pick. I remember when Clinton appointed Jocelyn Elders, and I wrote my Senator about it. My senator convinced me that allowing department heads like her didn’t hurt (or affect) the country in the long run (they usually only last 4 years, one presidential term or less, 2 terms or 8 years at the most), like a Supreme Court nomination does.

    With a filibuster-proof democratic controlled senate, a dem-controlled house, and a left-leaning supreme court, we are going to lose freedoms FAST.

    Hope and pray (and WORK) that in 2010 we have a repeat of 1994, and get the house or senate back in republican hands.

  2. It really really scares me that Pelosi is 2nd in line should anything (God forbid) happen to Obama. Who is next in line after Speaker of the House, the Secretary of State?

  3. While I agree Bork was his own worst enemy I’m not sure his hearings were rambling. Unlike the last few where judges attempt to say as little concrete as possible about their philosophy Bork gave a very interesting discussion of the constitution. Even as a sophomore at college, a few years later, I was quite taken with Bork. (I grew out of it I should add – I find some of his views hard to make sense of now although I have several of his books)

    The problem now is that barring some scandal the hearings are a total joke. A kind of choreographed dance where we all know the outcome (more or less party line votes) Further it promotes a kind of naive and illusionary portrayal of how constitutional law is argued. I think it would be much better to have an informed public on the issues – something the current type of hearings don’t encourage. (Primarily because of what happened to Bork)

  4. I am with Clark. Let the nominees says what they really think. Bork was open and interesting. I do not agree with him on anything (and I very much prefer Anthony Kennedy), but we all know the these people have views on Roe. Let them explain those views openly. It is no surprise that Alito is as conservative as Scalia (and Bork). I just with that we could have heard him explain it. It would have been interesting.

    Geoff, elections do have consequences. In 1986, the Democrat retook the Senate. Therefore, they had a greater say. The GOP has 40 seats and lost the the White House. Even if they wanted to block the nomination, they couldn’t.

    BTW, from what I have read and heard, Hatch was never as serious of a candidate for the nomination as some have said. There was also a nominee between Bork and Kennedy (I believe his last name was Ginsburg) who backed out after it was revealed that he had smoked pot in college. Times have changed.

  5. Great post Geoff. I agree with your take and conclusions — especially when you note the difference between Bork and John Roberts. There’s a world of difference there in terms of scholarly/judicial temperment. However, Bork is pretty astute in his writings, even if he wasn’t very smart about his testimony.

  6. I enjoyed this post, Geoff. We share the same mindset on this nomination. I may not like everything about Sotomayor, but she is the nominee and I think a very capable nominee at that.

  7. Huh. Didn’t know about Bork and Oaks. Fun story.

    I can’t help but lament that nominees have to clamp down on their opinions. I recognize that it’s politically necessary to take the aloof academic approach, but it would be a lot more fun to get a good preview of nominees judicial philosophies.

    Also, I must disagree with Bookslinger. I don’t agree with Judge Sotomayor’s jurisprudence in several significant areas (i.e., Ricci, but she is no more outside the mainstream than any of the sitting Justices, and she is amply qualified.

  8. Liberal or conservative? Just words. I want a strict constructionist. My biggest problem with the Obama administration is that El Jefe seems to be setting the scene for a transnational approach to interpreting US law, first with his appointment of Koh, and now Sotomayor.

    I hold “international law” to be of less than no worth, especially in terms of protecting the individual’s rights to life, liberty, and property. To that end, I distrust any American jurist willing to lend credence to the same.

  9. I’m a strict constructionist, also. I’ve been very concerned about Kennedy, ever since he began quoting international law in his opinions. Last time I looked, he took an oath to interpret things according to the US Constitution, not the UN Charter.
    Are they capable people. I presume they are in many ways, but ignoring their oath of office in order to interpret in new legislation oversteps the bound of the judiciary. And I can only imagine that Sotomayor will do no different than Ruth Ginsberg.

  10. FYI— Dallin Oaks was considered for a Supreme Court seat in 1975 when William O. Douglas resigned in 1975.At the time Edward Levi was Gerald Ford’s Attorney General( I believe Levi was the best attorney general in my lifetime as he cleaned up much of the legal mess left behind by the Watergate scandal.)

    Levi had been a teacher and a Dean at the University of Chicago when Oaks was a student and professor there. He was on Levi’s short list but the appointment ultimately went to John Paul Stevens who was on the 7th circuit court of appeals in Chicago at the time and who Levi knew quite well and was also on his short list.

  11. P.S to the FYI— Judging from the pictures of President Monson’s visit with President Obama and Senator Reid’s comments Elder Oaks and President Obama talked about law besides Genealogy. Not suprising as both Oaks and Obama taught law at the University of Chicago.

  12. Bo, Sotomayor is mainstream if you believe that judicial activism and legislating from the bench is mainstream. As I understand it, she is _not_ a strict constructionist in terms of the 1st or 2nd amendment. Obama and the left wing in control of congress have made clear what their intentions are in those areas.

  13. I think if the court ruled according to the original intent of the founders, most conservatives would be quite diaaappointed. Of course, most of the founders would think we were idiots for not being able to think on our own.

    Bookslinger: As a member of the left-wing of the Democratic Party, I am pretty sure that Obama and Congress have made little clear about anything, let alone anything related to the 1st or 2nd amendment. What are you talking about? The Democratic Party abandoned the gun-control issue 15 years ago.

  14. Gotta agree with Chris H on the gun control issue. Thanks to the great work of the NRA, the Dems are on the defensive. Both Colorado senators (liberal Dems in every other way) voted for the Thune amendment, which would have allowed all states to recognize other states’ right to carry laws. It got filibustered by big city liberal Schumer (sp?), so it didn’t pass. But the gun control situation is much better than it was, for example, during the 1980s and 1990s. Most Dems outside the northeast and California dare not bring up gun control anymore, and I for one couldn’t be happier.

    The “strict constructionist” issue is more complex than it seems. I certainly would prefer that the court spend more time looking at the actual document than doing things like inventing a “right to privacy” to justify abortion, but it is worth pointing out that Brown v. Board of Education would never have been passed by a “strict constructionist” court, and birth control would still be illegal in many states. It’s very difficult to know the Founders’ minds on the First Amendment, for example — Scalia and Bork disagreed on this issue, and they are both conservatives.

    I certainly agree that looking at international law is an extremely dangerous trend.

  15. John Willis, thanks for the info on Elder Oaks. I saw him speak in person at a small gathering in Brazil a few years back, and he was very powerful.

  16. Bookslinger, Koh and Sotomayor are going to be the tip of the spear at institution the North American Union. They’re transnationalists at their core, and will probably push for ICC jurisdiction in the United States. That’s just the way it is.

    Chris, I think that many rank-and-file GOP would be disappointed to know the Framers’ views, particularly the anti-Federalists. The one that they would recognize is Hamilton, since we have exactly the banking system he wanted.

  17. While I’m worried about Sotomayor’s decisions in some cases let’s be honest. Obama is never going to appoint a judge I like and having a bit of balance on the court is probably a good thing. Plus the one big thing she has going is her background in criminal law both as a judge and a prosecutor. That said I don’t quite understand some aspects of her jurisprudence (although since I’m no lawyer that doesn’t mean much). I’d have loved to have heard her explain them.

  18. In response to Geoff B’s comment I had the chance to hear Elder Oaks speak in a relatively small fireside a number of years ago. Afterwards I went up and spoke to him ,one of the people who had been on law review with him at Chicago had been a professor at my law school.

    I had just been sworn into the Ohio Bar and my reaction to the ceremony was that I had never seen so many dark three piece suits in one place in all my life, with one exception— the stand at General Conference.

  19. Pingback: From the Blawgernacle – August 1, 2009 « LDS Law

  20. Bork tried to cover up watergate and said that a woman should be fired if she refused to be sterilized if her company asked her to.

    Bork was pompous and combative, whereas Roberts and Alito were scholarly and non-controversial

    he couldnt even give an outright ‘no’ to the question ‘are you a racist’

    and the others improved because they had been schooled by the federalist society for many days beforehand.. indeed there are grounds to indict Roberts for the same reason regarding his response to questioning on abortion.. he had clearly been schooled on this and his response that he had not considered this was impeachable.

    seriously I could knock down these straw men all day. Good to see you promoting a man who had no qualms about tearing up the constitution to protect Nixon though.

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