Former Supreme Court Justice nominee Robert Bork predicts that President-elect Barack Obama’s judicial nominees will orchestrate a profound sea change in U.S. jurisprudence, legalizing same-sex marriage, restricting or eliminating the death penalty, and tying the hands of the military so severely that “commanders in the field will have to be gathering evidence while they’re fighting.”
In an exclusive interview with Newsmax, Bork, who currently serves as a distinguished legal scholar at the Hudson Institute, criticized Obama’s view of the role of judges. [Editor's Note: Watch the Judge Bork video - Go Here Now]
“The kind of judge he wants is a soft-hearted liberal who will legislate from the bench,” said Bork, whose new book is entitled "A Time To Speak."
“He never mentions the meaning of the Constitution as it was originally understood or intended. He talks about the personal qualities of judges as if they were politicians - and maybe in his view they are - and how they should behave as politicians.”
The good news for conservatives, Bork says, is that the justices considered most likely to retire based on age, such as Justice Paul Stevens, 88, and Ruth Bader Ginsburg, 75, are already “quite liberal.”
“They will be replaced by liberals, so the only change is you will get younger liberals. It’s not until you get to people like Scalia, Thomas, Alito, and Roberts and so forth that the problem begins to arise, and I don’t see that arising for some time.”
Bork says there is an “enormous difference” in the way that conservative and liberal justices are treated by the U.S. Senate during the confirmation process.
“In the past,” Bork tells Newsmax, “despite the fact that Democrats wage really bitter attacks on Republican nominees, when a Democratic nominee with a questionable record on judicial issues is nominated, Republicans did not attack. They fell over backwards and confirmed.”
He cited the example of Justice Ginsburg, whom he says had a record of making “really radical statements,” yet was confirmed by the Senate 96 to 3.
Bork’s own nomination to the Supreme Court by President Ronald Reagan was torpedoed by Democrats led by Sen. Ted Kennedy, who hurled unsubstantiated allegations of racism, sexism, and de facto fascism. Bork’s treatment at the hands of the Senate was so beyond the pale it actually created a new word in the American political lexicon, “bork,” used to describe savage personal attacks intended to defeat a person's nomination for public office. Even Bork’s private history of video rentals was leaked to the press during his confirmation process, a thoroughly modest list revealing Bork’s weakness for movies starring Jimmy Stewart, Cary Grant, Doris Day, and the Marx brothers.
Bork’s expectations for the future of American jurisprudence, once Obama’s nominees are seated?
“I would think that same-sex marriage, homosexual marriage, is one that’s likely to be ordered by the courts,” he says. “Roe v. Wade abortion will not change.
“They’ve been whittling away at the death penalty, although the death penalty is mentioned about four times in the Constitution as allowed if certain procedures are followed,” Bork adds. “It’s up to the people whether they want it or not. But this court has been whittling away at it without any warrant from the Constitution and without any warrant from the people. And I think they may just outlaw the death penalty altogether -- which I think is not only bad judicial interpretation, but may endanger lives.”
Of less concern to Bork is judicial approval of the use of eminent domain - that is, the authority of governments to seize private property - for private use in development projects.
“They didn’t say the local government has to turn over property to local developers,” says Bork. “They said you could. It’s up to the people of the states or cities have the power to forbid it. It’s not a catastrophic decision in the way that some that can’t be changed by the people are.”
One of Bork’s primary concerns is the fate of the 4th Circuit Court based in Richmond, Va., which has played an instrumental role in terrorism cases filed during the Bush administration. Obama has an opportunity to transform that court, which currently has four judicial vacancies.
“That’s been a very good court, a very moderate court, very sensible on matters of national security and intelligence gathering and so forth,” Bork tells Newsmax. “One of the really dismaying signs we have coming out of the Supreme Court is this willingness to interfere with the military. It’s not as if that’s an established practice. What they’ve been doing is overturning decisions made by the Supreme Court during WWII that showed deference to the U.S. military in matters of security. They’ve been overturning those. I’m afraid that’s a trend that will be hard to stop.”
Although President Bush has nominated four candidates to fill the vacancies on the 4th Circuit Court, those nominations, like scores of others, have been stonewalled by Democrats who simply refused to allow them to come up for a vote.
Bork adds that under Obama terrorist suspects may be routinely tried in the United States with ACLU attorneys at their side.
“I’m afraid it may happen,” Bork says, “And commanders in the field will have to be gathering evidence while they’re fighting.”
Editor's Note: Watch the full Judge Bork video - Go Here Now
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