Robert Bork, who only months ago lost a free-for-all battle over his U.S. Supreme Court nomination, was in Utah Thursday for two campaigns:
One was to do battle in what he calls a war for control of the U.S. Constitution. The other was to help re-elect Sen. Orrin Hatch, R-Utah, who led the unsuccessful fight to confirm Bork's Supreme Court nomination.And during his visit he shook his head in wonder over the controversy, fear and fabrication sparked by his nomination.
Lies during his confirmation hearings, the former federal judge told an overflow audience at Brigham Young University, were "so many and so thick that if the viewers, listeners and readers would have believed 10 percent of what was said, they would have quite a right to be terrified."
In another appearance on behalf of Utah's junior senator, he said, "I believe, as does Senator Hatch, that a judge should follow the intent of those who wrote the Constitution. Judges should not create new rights" or create new meanings from the Constitution.
That prompted Hatch to say, "The country lost one of the greatest Supreme Court justices ever but has gained a great champion for the Constitution. . . . His views had been confined to judicial chambers and open courtrooms, but now he can take them to the public."
Bork resigned as a federal judge in the District of Columbia to speak out about problems with the judicial system. Bork also a former U.S. solicitor general and law professor is writing a book about his failed nomination and how he believes improper politics unjustly ruined it.
Hatch's campaign financed Bork's Utah visit to speak at a fund-raiser Thursday night. During the day he also spoke at the BYU Law School, talked at an informal news conference and taped a television talk show.
His themes through the day ranged from how his failed nomination is a sign that traditional constitutional interpretation is in trouble to predicting that Hatch would easily be confirmed to Supreme Court if nominated.
"But I thought I would be easily confirmed too," he joked.
He told the media in Salt Lake City that politicization of his appointment was not only a defeat for him, but a defeat for judges who try to interpret the Constitution as intended by its authors.
"But that defeat has the seeds of victory. It has taken discussion of the Constitution out of the judicial chambers to the public."
At BYU he decried the lies that tarnished his Supreme Court nomination.
For example, one ad erroneously claimed he made a ruling in a city zoning case that prevented a grandmother from living with her family. He never dealt with the case. Bork said if such lies had been true, "I would have committed virtual hari-kari before television cameras."
Bork said his detailed Senate confirmation hearings may have set a sad precedent, with future nominees possibly being people who haven't written much legal opinion and who will talk in generalities. "The Senate should realize that it's not its function to judge judicial philosophy."
Such action adds fuel to the current legal debate about whether the U.S. Constitution controls the judge or whether judges are free to interpret and rewrite the Constitution, he said.
Bork said he favors the ideal of "original intent," reasoning in accordance to the Constitution's general principles and not usurping the function of legislators. "It seems inescapable . . . (such a) philosophy is necessary if we are to retain a legitimate role for lawmakers and a legitimate role for democracy."
Even though Bork said future Supreme Court nominees who interpret the Constitution traditionally could have problems with confirmation, he said Hatch could be confirmed easily.
"Orrin Hatch is the most prominent constitutional scholar in the Senate. I would be astounded if he were not confirmed." Hatch was widely rumored to be considered for nomination to the Supreme Court by President Reagan.
But Hatch said he was a traditionalist like Bork, so it made little sense for Reagan to nominate him after Bork's nomination was defeated. Reagan later nominated Douglas Ginsberg, who withdrew after admitting he once smoked marijuana. A third nominee, Anthony Kennedy, was finally confirmed.