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Jewish World Review Oct. 3, 2005 / 29 Elul, 5766 Roberts confirmation: Bork is owed an explanation By Jonathan Turley http://www.JewishWorldReview.com | On Sept. 29, by a 78-22 vote, the Senate confirmed Judge John Roberts as the 17th chief justice of the United States. There remains only one lingering question for the Democratic senators to answer: Who is going to call and explain all of this to Robert Bork? Bork is one of those hapless historical characters who has actually become a verb in modern American politics. To "bork" a nominee is to launch a well-planned and coordinated campaign against him. Almost 20 years later, Bork must have been watching the Roberts hearings in some disbelief. Roberts sailed through by simply refusing to answer questions, even about his past writings and opinions. Where senators gutted Bork before an audience of millions, they have gushed over Roberts. Yet Roberts appears to hold virtually identical views as Bork on a number of key issues and has a very similar résumé. Roberts worked in prior Republican administrations advocating hard-right policies. So did Bork. Roberts worked in the solicitor general's office litigating hard-right policies. Bork was solicitor general. Roberts was a judge on the U.S. Circuit Court for the District of Columbia and wrote hard-right decisions. So did Bork. Roberts has written against core aspects of privacy, affirmative action, federal jurisdiction and other key areas. So did Bork. Indeed, with a little Botox and liposuction, Roberts would look a lot like Bork without the beard. Roberts may indeed prove more reluctant to overturn some precedent than Bork. However, the reason that Roberts has sailed through is his style and not the substance of his views. Indeed, future hearings are likely to follow this model as a test of sound bites and spin without an ounce of substance. The role of the confirmation hearing seems to be approaching irrelevancy in our system. Back in the 1980s, Senator Joe Biden, D-Del., chaired the Bork hearings and warned that "If Reagan sends someone up who has the same views as Bork, I believe he will not only have trouble, he will not have a nominee." However, when President Bush nominated such a nominee, Biden appeared much less aggrieved, even telling Roberts that "you're the best I've ever seen before the committee." On one level, the Roberts hearings show how politics is now all visual. Where Bork was this sinister-looking figure with a Mephistopheles beard, Roberts is a camera-ready, handsome figure who looks like he was made from the latest composite material from the Republican National Committee. Teamed with a radiant wife and two adorable toddlers in saddle shoes and smiles, the family looks like they were stored in Karl Rove's office behind a glass reading "Break in case of confirmation hearings." No bar against sharing views Outfoxed by the White House, Democrats did not even have the presence of mind to grill Roberts on the one legal judgment that he offered in the hearings: Judicial ethics do not allow him to answer substantive questions on his views. It was the only clear conclusion that he gave, and it was clearly wrong. Judges and justices routinely share their philosophical views in various areas. It is only discussing actual cases that is barred under legal ethics. Obviously, some hypotheticals can trigger this bar, but there is nothing that prevents a justice or a nominee from discussing, for example, whether he or she believes that there is a right of privacy protecting homosexuals in their private relationships. For Democratic senators, the refusal of Roberts to answer such questions has produced a curious acquiescence. In perhaps the most honest moment of the hearings, Judiciary Chairman Arlen Specter, R.-Pa., noted that history has shown that "nominees answer about as many questions as they think they have to be confirmed." The only thing that might have forced substantive answers was a threat of a filibuster. After all, these same Democratic senators have vowed to filibuster appellate judges who were no more conservative than Roberts. Yet there was no talk of such measures to compel responses to core questions. The Roberts model will leave a lasting legacy for hearings: perfunctory proceedings where senators parade and pander while the nominee smiles in silence. It also means that future presidents are likely to look for nominees who have spent their entire careers without distinction in their writing or speaking on key legal issues. If you are a creative and productive mind like Bork, you are toast for confirmation. If you live in the shadows of politics and never utter a controversial word, you are on easy street. What is ironic is that the Democratic senators appear to like Roberts because he possesses many of their same skills. Roberts was able to artfully spin past statements and opinions to avoid their obvious meaning. He was able to elegantly refuse to answer questions while appearing to do so. He is "the best" because he was made for the Senate. In this respect, Bork may have been made for the court and academia. While Roberts loves the law, he avoided joining the public debate. He did so to protect himself from the consequences of being unpopular. Bork spent his life engaged in that debate despite the consequences. When Roberts takes the chair of chief justice this week, I hope that someone in the Democratic caucus will call Bork and buy him lunch. They owe it to him. Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here. JWR contributor Jonathan Turley is a law professor at George Washington University. Click here to visit his website. Comment by clicking here. ARCHIVES © 2005, Jonathan Turley

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