The confirmation fight over Judge Samuel A. Alito, Jr. is looking like it will give all sides exactly what they want; until, that is, there is a losing side. More specifically, it looks to provide the left with their first opportunity for a true “borking” since that term was originated with the defeat of Judge Robert Bork’s nomination in 1987. While some might use the term to mean any sustained attack on a nominee (like that which happened to Clarence Thomas), what was done to Judge Bork had a particular style of malice. It was an attempt (and a successful one) to deliberately misconstrue and misunderstand years of writings and opinions and judicial findings. Of-course we can’t exclude the possibility that some senators did genuinely misunderstand, due to some deficiency of intellect (Sen. Arlen Specter, R-Pa) - but largely, it was the deliberate portrayal of opinions and decisions of Judge Bork’s as being born of a harsh conservative judicial activism, rather than being born of a dedication to the philosophy of original understanding: the only mutually agreeable method of interpreting the constitution that protects the citizenry from the rule of judges, as opposed to the rule of law.

It is the opposite of judical activism, although its fair implementation in today’s world would of necessity overturn some recent cases of left-wing judicial activism and return those issues to legislatures to decide.

Alito has more time on the bench to examine than any other Supreme Court nominee in over 70 years. That provides a huge tonnage of opinions to probe, break apart, manipulate, distort and use for political bomb-throwing. It’s already happening, and it will only get more intense.

Bork’s book, The Tempting of America, is a superb primer for the fight that is about to be waged. It makes the case for originalism in an accessible way, and puts this philosophy in the context of two centuries of constitutional law. It explains the temptations for both sides in the political arena to look for preferred results from the Supreme Court instead of valuing decisions that safeguard our constitution’s meaning for all of us and that put responsibility back on citizens and elected officials. It describes his own nomination fight and illustrates the ways in which deliberately untrue statements about his record, made often enough, came to trump reason. Perhaps over the course of the next couple of months there will be opportunities to quote relevantly from this book. Here’s a paragraph in which Bork is talking about the deterioration of respect for the courts due to their growing tendency to deal in political results rather than in law:

We have been moving in this direction for a long time. No legal system can produce increasingly political results without at some point ceasing to be, or earning the respect due, a legal system. Groups that have been taught to see the courts as their reliable political ally, as their branch of government, react in fury when courts begin to apply law instead. The Supreme Court is our preeminent symbol of the rule of law. If the Court comes to seem illegitimate, the legitimacy of law itself declines and the moral obligation to obey it is cast into doubt. What the future holds in this respect is unclear. What is clear is that we have come close to a tipping point and we must draw back.

That was written more than 15 years ago. It is not too much to say that it is here and now, in the second term of George W. Bush, with the nomination of Judge Alito to the Court, and hopefully one more comparable nomination before this president’s term is up, that we have the chance to “draw back” from that tipping point that Judge Bork described, which has become only that much more precarious in the interim.

So, obviously I would recommend Bork’s book for anyone who wants to have a good working understanding of the issues that are at hand, in a readily readable and enjoyable form. (You can buy it here for the bargain price of only $10.88.)

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