Herewith my Q & A with Judge Bork, in which I read him a handful of questions I’d received from readers of the Corner.
YOURS TRULY: “In Article III, Section 2 of the Constitution it is established that the federal judiciary’s role is subject to ’such exceptions and under such regulations as the Congress shall make.’ How could Congress best use these powers to rein in judicial overreach?”
JUDGE BORK: I don’t think Congress can very effectively use Article III, Section 2–the exception clause–to rein in the Supreme Court. In the first place I’m not sure the Court would uphold such a measure as constitutional. But even if it did, that would only mean that the issue would then go into the state courts. Aside from the possibility of chaos–you’d have fifty different state courts going different ways–the fact is many of the state courts are quite as active and adventurous as our Supreme Court. You would get, for example, the abortion rulings the same way, you would probably get the pornography rulings, and you’d probably get the homosexual rulings the same way. In fact the state courts are taking on that latter issue now. They’ll probably hold for a right to same-sex marriage before the United States Supreme Court even gets to it.
YT: “Given that there needs to be an arbiter in matters constitutional, what should the check on the judicial branch be? Is impeachment the only option?”
BORK: Impeachment is the only option, and impeachment is not going to work. You couldn’t get a justice impeached–not for misbehaving as a judge, at least, although maybe you could if you caught him in some other activity, but not for the way he behaves as a judge. There is currently no way to block the Court except, I suppose, through the confirmation process. But that’s long run, and you can’t count on the confirmation process really digging out what people will be like once they’re on the Court. And furthermore our political parties have now split on this issue, and the Democrats clearly want activist judges. So barring a series of strong electoral victories and some luck, I don’t think there’s any way to stop the Court from its adventures.
YT: “If you were writing your book today, would you change the name from Slouching Toward Gomorrah to something a little more present-tense, like Now Entering Gomorrah Village Limits?”
BORK: (Laughing) Well, they’re reissuing the book, and I’m adding an epilogue. Maybe I should title it, “Welcome to Gomorrah.” But Slouching Toward Gomorrah is a play on Yeats’s poem, “The Second Coming,” and I’d hate to lost that play.