Conservative legal pundit, Ed Whelan, who writes for the (once) venerable National Review, has a regular feature on his blog called "This Day in Liberal Judicial Activism." Yesterday, his entry was short, sweet and silly:
1987--Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan's nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr.
Now, Whelan is not dumb -- he went to Harvard Law School and clerked for Justice Scalia. But being bright does not stop one from being a hack if one so chooses. So, it is not surprising that Whelan has a "Liberal Judicial Activism" post thing he does. However, anyone with even the slightest bit of familiarity with the literature knows that "judicial activism" is a term with no political valence and is simply code for "something that I don't like." Indeed, as I have written elsewhere, the real fear today is a conservative judiciary/Supreme Court who wants to re-write the Constitution in their image.
But no matter, Whelan has an ideological axe to grind, and grind away he will. So, in a stretch, he points to the Senate refusing to confirm Judge Bork to the Supreme Court back in 1987. Well, the first problem is that this isn't, by definition, judicial activism because it was the Senate allegedly engaged in activist behavior. Just inane.
Moreover, the reason Bork was not confirmed by the Senate is not because of an "unprecedented campaign of lies, distortions, and vilification." The reason is much more simplistic: Bork went down to defeat because, as an academic, he had written a lot on constitutional law, and had written much that was very conservative. He had also written some very conservative judicial opinions when he served on the D.C. Circuit Court of Appeals. See, e.g., Dronenberg v. Zeck, 741 F.2d 1388 (1984).
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But facts and common sense mean nothing to Whelan.