Tags: bork | sotomayor

Robert Bork: Sotomayor Unqualified, Isn't 'Entirely Governed by Law'

Tuesday, 14 Jul 2009 03:52 PM

By Jim Meyers

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Legal scholar and former U.S. Supreme Court nominee Robert Bork tells Newsmax he doesn't believe court nominee Sonia Sotomayor's assertion that she is "entirely governed by law," as he believes she should be.

In an exclusive interview, he also said Sotomayor, who's going through confirmation hearings before a Senate panel, should be disqualified from consideration because of a statement she made.

And Bork stated that the Roe v. Wade decision has been the "most dangerous" the Supreme Court has ever made because it has "embittered our politics."

See Video: Judge Robert Bork discusses Sonia Sotomayor and the Senate hearings - Click Here Now

Bork was solicitor general and was a judge on the U.S. Court of Appeals before President Ronald Reagan nominated him for the Supreme Court in 1987. The Democratic Senate rejected his nomination after a contentious debate, and the seat on the bench eventually went to Anthony Kennedy.

Newsmax.TV's Ashley Martella observed that Bork's "savaging by the left" forever changed the way judges are confirmed, with politics and demographics becoming more important than competence and qualifications.

"That's entirely true," said Bork, whose latest book is "A Time to Speak — Selected Writings and Arguments."

"But the Supreme Court has only itself to blame for that. The Supreme Court made itself, starting in the 1950s, into an increasingly political institution, and once you're a political institution with that kind of power, people are going to fight to control the institution any way they can.

"In my case, I think the trigger was the fear that I might vote to overrule Roe against Wade."

Martella asked whether Sotomayor's statement that a Latina woman could make smarter decisions than a white male should have been "an immediate disqualifier."

"Yes," Bork stated, "except for the fact that, if we disqualify people for that kind of remark, we'd have to disqualify an awful lot of judges, because there is a lot of judging that takes place that is really visceral rather than intellectual."

Sotomayor also has made the controversial statement that appellate court judges make policy. Bork said: "In some sense, all judges make policy, because the fact that there's litigation means the question isn't [resolved] and the court has to settle that, which is to choose one policy rather than another.

"But the question is how you do that. If you do it by doing the best you can with the legal materials at hand, that's fine. If you do it without reference to the legal materials, without reference to the law, that is lawless."

Sotomayor ruled that New Haven, Conn., could deny firefighters promotions because they passed an exam that no African-American passed. Martella pointed out that the decision was made via summary judgment, with no trial, and asked Bork whether he thinks that was appropriate.

"No I don't," he responded.

"It really was a sign of disrespect to the litigants who were asking for justice. They should have had a full hearing and a reasoned opinion written for them, even if they lost. But they didn't get that."

What was telling about Sotomayor's decision in that case is "a preference for some minorities over the majority," he added.

"In this case, as a matter of fact, some minorities over other minorities, because there were Puerto Ricans that were denied promotions as well."

Bork called confirmation hearings such as Sotomayor's "something of a dance. The opposition asks tough questions, the nominee gives a soft and evasive answer and assures everybody that fidelity to the law is the only thing that matters.

"Then having gotten past that, when they're on the bench they go back to their prior practice of deciding politically. I don't take Sotomayor's protestations that she's entirely governed by law seriously. I think the statements she's made and the rulings she's made show that she's not governed entirely by law."

During confirmation hearings, Republicans don't mount "baseless smears" such as the one Bork was subjected to, said Martella, who asked Bork whether he thinks Republicans are "naïve in the confirmation proceedings."

"It's quite true that the Democrats are willing to engage in furious attacks, often without any basis in fact, and Republicans are not," said Bork, who is a fellow at the Hudson Institute, a conservative think tank.

"I don't know if that's a Republican virtue or Republican timidity. But I think the Republicans are either going to have to persuade the Democrats to quit that approach to confirmations, or take up the same kind of tactics themselves, which would be too bad."

Although the current Supreme Court is generally seen as fairly balanced, Bork declared that, "by and large on big social issues, it is a liberal left court. I don't think it should be. I think it is ideological rather than legal, what they're doing."

And when asked what he believes has been the "most dangerous" Court ruling, Bork answered:

"I think it's proved to be Roe against Wade. We have very bitter politics over abortion.

"I understand it's different in Europe, where the issue is not nearly as explosive or as divisive, the reason being that in Europe by and large the issue is decided by legislatures. Each side fights it out, arrives at some kind of a conclusion, a compromise, and they go home deciding they can try again next year.

"Here, by contrast, voters and political parties are just told to shut up, and that makes them furious. So Roe against Wade, whatever else its demerits are, has really embittered our politics in ways that are most unhealthy."

See Video: Judge Robert Bork discusses Sonia Sotomayor and the Senate hearings - Click Here Now

[Editor's Note: Get Judge Robert Bork’s book, “A Time to Speak: Selected Writings and Arguments.” Go here now.]

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