America missed a very good thing indeed when a corrupt Senate refused to approve Robert Bork as a Supreme Court Justice. As evidence, note the common sense, courage and straightforward legal acumen that emerges in a recent interview with Newsweek. Here's a few excerpts:President Obama has spoken of empathy as his key standard for choosing judicial nominees. What do you think of that approach?
I don't know exactly what empathy means. I suppose at a minimum it means you want a judge who will depart from the meaning of the constitution when a sympathetic case arises. It does seem to raise a warning that we're talking about a judge who does not follow the law.
And I take it that you don't approve?
You are quite correct.
What are your thoughts about Judge Sotomayor's nomination?
I think it was a bad mistake. Her comments about the wise Latina suggest identity-group jurisprudence. She also has a reputation for bullying counsel. And her record is not particularly distinguished. Far from it. And it is unusual to nominate somebody who states flatly that she was the beneficiary of affirmative action. But I can't believe she will be any worse than some recent white male appointees.
Anyone you'd care to name?
I could, but you don't want the estate of these people suing me, do you?
As it's currently composed, this is sometimes called a conservative court.
I don't see it at all. It's a very left-leaning, liberal court.
Could you elaborate? Compared to what?
Well, compared to what the Constitution actually says. They tend to enact the agenda or the preferences of a group that thinks of itself as the intellectual elite.
How have you been struck by Chief Justice Roberts and Justice Alito since they were appointed?
My general impression of them is quite good. The justice up there who I most admire is Clarence Thomas. I notice that when he and Scalia differ—it's not that often, but when they do—I tend to agree with Thomas.
What's the responsible approach for Senate Republicans now to take if they share some of the concerns you've expressed about Judge Sotomayor?
I don't think they ought to filibuster. That would be very bad press for them. But I don't think deferring to the president is always a good idea. I would suggest that they air the issue so that people understand what the objection is. And then vote against, which will not affect anything. Or, if they air the issue thoroughly, some could even vote in favor of confirmation. But you've got to be clear what the problem is.
Any particular issues or cases come to mind?
No. I've read them, but I no longer worry about those things, because I don't teach it anymore. In fact I refuse to teach constitutional law, because it's so obviously politics and not law. The incoherence of some of those opinions is astounding. If you want to know what the constitution means, you will not learn it from the court.
Can you describe your judicial philosophy?
Well what it is is originalism. Which means you try to interpret the Constitution according to the principles as they were originally understood by the people who drafted it, by the people who voted for it. And that's neither conservative or liberal. But the court has moved so far to the left that any correction back to the proper central position would look like conservative activism to some people.
Is there a principled definition of what judicial activism is?
Sure. A judge is an activist when he announces principles or reaches results that cannot plausibly be related to the actual Constitution.
On another front, the court has decided three cases against the Bush administration on Guantanamo, the most recent one giving habeas corpus rights to supposed enemy combatants. What do you make of that whole line of cases?
It strikes me as preposterous to begin to extend rights to enemy combatants that we never extended to captured Germans, Italians and Japanese in World War II. It's also dangerous once we begin to judicialize the conduct of a war. It can only make our forces less effective. But something has changed in the attitude. I think it was the invasion of Grenada, when a commanding officer refused to let the press come to the front lines, and a reporter said "in World War II we were allowed in the front lines," and the commander said "in World War II you were on our side."
Your own confirmation hearing in 1987 is often called a watershed for the process.
It wouldn't have been but for the fact that I looked like the fifth vote to overrule Roe v. Wade. And in modern politics, that is a subject that raises hysteria.
Would you have been the fifth vote to overturn Roe v. Wade?
Oh, of course. It's one of the most corrupt decisions I've ever seen.
Was it your view that the law on abortion should be left totally to the democratic process?
I oppose abortion. But an amazing number of people thought that I would outlaw abortion. They didn't understand that not only did I have no desire to do that, but I had no power to do it. If you overrule Roe v. Wade, abortion does not become illegal. State legislatures take on the subject. The abortion issue has produced divisions and bitterness in our politics that countries don't have where abortion is decided by legislatures. And both sides go home, after a compromise, and attempt to try again next year. And as a result, it's not nearly the explosive issue as it is here where the court has grabbed it and taken it away from the voters...
