Chuck Schumer’s Supreme Court Attack: Democrats Fear Law as Written

With Joe Biden ascendant, at least for the moment, in the Democratic primary, Robert Bork has been on my mind. As I wrote in my column welcoming Biden to the front of the pack, the former vice president’s lunch-bucket shtick masks — is intended to mask — the fact that he is one of the great poisoners of American politics and political discourse, who, together with the sanctified Teddy Kennedy, organized and executed the smear campaign against Judge Bork when he was nominated to the Supreme Court.

Criticism of Bork — at the time and, in my inbox, as recently as Thursday morning — always has followed a predictable pattern of intellectual dishonesty. Bork’s judicial view (it is not quite a philosophy) is that the law says what it says, and that the interpretive task of judges is to operate within the boundaries of what the law actually says, guided in part by what the words were meant to indicate at the time the law was enacted, rather than to begin with their own idea of justice, their own preferred outcome, and then try to shoehorn their own preferences into the language of the statutes and the Constitution. If we are to have the rule of law in a meaningful sense, then judges are obliged to do this even when they disagree with the law in question or believe it to be unjust. The alternative is Senator Sanders’s favorite word: oligarchy, in this case a nine-headed Caesar (Antonin Scalia’s memorable phrase) empowered to overrule the democratically elected lawmaking bodies and the Constitution itself any time five of its members wish.

About the Author

Kevin D. Williamson

Kevin D. Williamson is a former fellow at National Review Institute and a former roving correspondent for National Review.

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With Joe Biden ascendant, at least for the moment, in the Democratic primary, Robert Bork has been on my mind. As I wrote in my column welcoming Biden to the front of the pack, the former vice president’s lunch-bucket shtick masks — is intended to mask — the fact that he is one of the great poisoners of American politics and political discourse, who, together with the sanctified Teddy Kennedy, organized and executed the smear campaign against Judge Bork when he was nominated to the Supreme Court.

Criticism of Bork — at the time and, in my inbox, as recently as Thursday morning — always has followed a predictable pattern of intellectual dishonesty. Bork’s judicial view (it is not quite a philosophy) is that the law says what it says, and that the interpretive task of judges is to operate within the boundaries of what the law actually says, guided in part by what the words were meant to indicate at the time the law was enacted, rather than to begin with their own idea of justice, their own preferred outcome, and then try to shoehorn their own preferences into the language of the statutes and the Constitution. If we are to have the rule of law in a meaningful sense, then judges are obliged to do this even when they disagree with the law in question or believe it to be unjust. The alternative is Senator Sanders’s favorite word: oligarchy, in this case a nine-headed Caesar (Antonin Scalia’s memorable phrase) empowered to overrule the democratically elected lawmaking bodies and the Constitution itself any time five of its members wish.