The (Politically) Supreme Court

The great sound and fury over the nomination of Robert Bork to the U.S. Supreme Court included many grand proclamations from all sides concerning the original intentions of the constitutionalists and the relevance of those intentions to our society today. It is clear to anyone with a modicum of knowledge about the great issues involved that there are rational grounds for sincere disagreements on these matters. Many of us believe, for example, that Judge Bork's "legal positivism" denies the basic ideas of human nature, conscience, and natural rights that form the very foundation of the Constitution. Others would insist that he does not allow for sufficient interpretation to meet emergent and urgent social trends. But the most obvious fact of all to anyone really concerned with the original intentions and with the practical problems today of governing our society by law, rather than by the impassioned sparring of politicians for advantages, is that the entire proceedings were a travesty of the original intention in providing for the consent of the Senate to appointments to the federal bench.

The basic purpose of making the federal judges appointees of the President and contingent upon the consent of the Senate, rather than making them elected officials, was to buffer or insulate them from the partisan passions of politics. Archibald Cox, one of the foremost liberal interpreters of the Constitution, has forcefully stated...

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