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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Wednesday, August 26, 2009 ::
    EDWARD KENNEDY: American Gracchus

    The Roman Republic lasted for about 400 years, with an unsystematic, jerry-rigged constitution, resting on a foundation of political tradition, by which I mean a set of well-known but not externally enforceable rules about what one simply did or did not do in politics.

    In the 1st century BC, the system collapsed rapidly into civil war, dictatorship, political assassination, mass executions, and more civil war, followed a relatively benign empire that was itself eventually drawn into civil war, dictatorship, and the eventual replacement of the trappings of Roman authority by new rulers who considered them inconsequential.

    This collapse began because men for whom political goals -- good goals: reformist goals -- were everything discovered they could end-run the system by ignoring its traditions. What are silly old rules anyway, when the [insert one: masses/farmers/workers/poor] look to you for change? So out with formalistic rules that say that a man can't be consul twice. Or for life. And out with the rule that says consular legions must serve the people of Rome rather than the consul who commands them.

    I mention all this because it has to do with what I most vividly associate Ted Kennedy with, which is the successful political campaign to stop the Supreme Court confirmation of Robert Bork. Politically charged judicial nominations were far from unknown in 1987, but for decades leading up to that year, all successful campaigns to block Supreme Court nominees, and all unsuccessful yet serious ones, had gone through the pretense of focusing on factors other than the "ideology" of the nominee (the term "ideology," in this context, spanning political and jurisprudential views, and often implying a denial of the difference between them) was not what the fight was about, but rather, something to do with his "qualifications."

    Haynsworth? A bogus conflict-of-interest charge. Carswell? A general not-up-to-the-job charge that may not have been bogus. Fortas, for promotion to Chief? A conflict-of-interest charge that eventually forced his resignation from the Court. Rehnquist, for promotion to Chief? Ancient rumors about pollwatching in Arizona and unenforceable racially restrictive covenants on homes (you know: the kind Ted Kennedy had on his place too); those, plus the fact when he had back surgery, he took some meds for the pain, imagine that. Dan Manion, for the 7th Circuit? There were some typos in the briefs filed by his one-man, one-secretary, pre-spellcheck law office.

    Politics -- fears about the public-policy outcomes of the decisions these nominees would reach -- drove all of this, but apolitical pretexts were always found. At the time it seemed cloyingly insincere: why don't these activists come right out and say what they mean?

    On further reflection, and in post-Bork hindsight, we can see that these pretexts were our political system's last gesture of respect for the apolitical -- or at least, transpolitical -- nature of the Article III judiciary. They were there because a consul shouldn't serve more than one term, an army should be loyal to the state rather than to its general, and U.S. federal judges are not just politicians with life tenure.

    The proof of the strength of this tradition, as late as the spring of 1987, was that Robert Bork was the go-to example of the sort of Supreme Court nominee whom it would be easy for President Reagan to get confirmed, no matter the partisan composition of the Senate, because of his amazing and unquestioned record and qualifications, and despite his well-known judicial conservatism and his published critiques of precedents dear to the hearts of liberals (including ones that even Republican nominees burn incense in front of today, like Griswold). Joe Biden, chairman of the Senate Judiciary Committee at the time, said forthrightly some time in '86 or early '87 that he'd "have to vote for" Bork if President Reagan "sent him up." Qualifications still trumped ideology.

    Ted Kennedy changed all that, with help from leftwing organizer Ralph Neas. Surveying the activist landscape the day Bork's nomination was announced, Neas concluded: "This is eminently doable." Kennedy made his infamous "Robert Bork's America" speech right before the start of the Fourth of July break, with the intent, and the effect, of preventing centrist Democrats from committing to confirm him, and of "problematizing" (as they say nowadays) a formerly unproblematic nomination. He then spent his Fourth poolside phoning activists, donors, etc.

    All this without the slightest pretense that Bork was anything other than an outstanding legal scholar and an accomplished federal judge, and without the remotest allegation of wrongdoing. From beginning to successful end, the Kennedy/Neas campaign against Bork was based on his legal views and his judicial votes. A member of a Kennedy-favored constituency lost an appeal in Bork's court? Speech -> press release -> headline: "Bork Seen as Hostile to [insert constituency here]." He criticized (as did Justice Black) the reasoning of Griswold, or (as Justice Frankfurter did) the reasoning of Baker v. Carr, or (as Justice Harlan II did) the reasoning of Reynolds v. Sims? Message -> activist groups -> letters to Senators: Bork wants to take away our contraceptives and our votes!

    Of course, it worked. Hanging on to consular power works too, and so does commanding leader-specific armies, if by "works" you mean accomplishing results. But the judicial confirmation process has been turned into a dishonest ballet at best and Grand-Guignol at worst, many distinguished nominees (when one adds in the lower federal courts) have been denied confirmation, and -- for conservatives, anyway -- a stark and early career crossroad within law has been established: go for a federal judgeship, or engage in candid, searching critiques of constitutional law. Thanks to Ted Kennedy, you can no longer do both.

    The ideologue-scholars wrote that the law/politics distinction is fictitious: it took Ted Kennedy to enshrine this destruction in our national practice. As I see it, this is his most lasting legacy.

    All that said -- RIP.

    :: David M. Wagner 10:18 AM [+] ::

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