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Bork on CNN:

I received this transcript of Robert Bork's phone interview on CNN, but haven't been able to find a link to it. It seems like an accurate transcription. If anyone has found it, let me know.

The most amusing part of the exchange:

KAGAN: I would like to ask you a personal question, Justice Bork. As what you went through back in 1987, what kind of advice would you give to whomever is nominated as it goes forward?

BORK: I don't think I can give any very good advice. After all, as I once put it, it's like asking Custer how to deal with the Indians. I didn't do it very well. But I -- you know, they're going to -- they're going to insist upon answers to questions, "How will you vote on this? How will you vote on that?" Which I think is a very unfortunate practice, but that's what they are doing now in the Senate.

Herewith the entire transcript (as received via email). Please note that by posting the transcript, I am not necessarily endorsing or not endorsing everything Bork says, I am posting it because I think readers may find it interesting:

CNN Live Today

July 1, 2005

KAGAN: All right. Panelists, we'll be back to you in just a moment. Interesting person to talk to on the phone right now. Robert Bork on the phone, somebody who got almost to the Supreme Court. The judge nominated in 1987, a nomination that did not work out in the way that Judge Bork, I think, you would have liked. Your comments today on Sandra Day O'Connor and her legacy on the court, please.

JUDGE ROBERT BORK, FMR. SUPREME COURT NOMINEE: Well, she's a very nice person, but she is -- as a justice, she has been -- they call her the swing vote. That's true. But that means that she didn't have any reaffirmed judicial philosophy. However, on the crucial cultural question, she has lined up with the liberal side on abortion, on affirmative action, homosexual normalization and so forth.

KAGAN: Excuse me. Judge Bork, do you think it's fair to say she didn't have an judicial philosophy? Perhaps that she didn't have the same judicial philosophy that you share. But she probably -- she possibly had a more moderate philosophy and was expressing that as a swing vote on the high court.

BORK: I think that referring to a moderate philosophy and a conservative philosophy and so forth is quite wrong. The question is, those judges who depart from the actual Constitution, and those who try to stick to the actual Constitution. She departed from it frequently. So I wouldn't call that moderate. I would call it unfortunate. But she is -- she is -- as a result, she often determined the outcome by swinging from one side to the other.

KAGAN: OK. Instead of looking back on Judge O'Connor, let's look forward. Whatever nominee, whoever is picked, whoever President Bush picks, they use your nomination process as an example of what they don't want to happen. A lot of people -- a lot of conservatives do wish that you had been confirmed and serving on the high court. Instead, it's been Justice Kennedy, who has been more moderate than a lot of people think.

BORK: I wish you would stop using the word "moderate." But go ahead.

KAGAN: Well, no. What would you use? How would you compare what Justice Kennedy has done instead of perhaps what you have done if you had been on the court.

BORK: I would call it activist.

KAGAN: OK. So you would like to see -- actually, you bring up a good point. This is a time in U.S. history that's not just talking about who is going to be the next person on the U.S. Supreme Court, but when the whole topic of what the judicial system and how it operates in this country is up for debate.

BORK: That's right, because it's really a cultural fight now. The Supreme Court has made itself into a political and a cultural institution rather than a legal institution, so that both sides see it in political terms.

KAGAN: President Bush's comment that he made just a few minutes ago, he said in whomever he picks he does expect and hope it will be somebody who honors the Constitution. I think that's something that you would like to hear. He also says that he and his staff will be talking with senators, trying to pick somebody who hopefully they will be able to get through confirmed.

What do you think about that?

BORK: Well, it depends on which senator he talks to and what he's -- and why he's talking to them. If he thinks that he ought to -- he ought to tailor his nomination to the desires of people who want activist judges, then I think that's a very bad idea. The Constitution says that he -- the president shall nominate and, with the advice and consent of the Senate, appoint. So that the advice and consent function of the Senate applies to the confirmation and appointment, not to the nomination.

KAGAN: I would like to ask you a personal question, Justice Bork. As what you went through back in 1987, what kind of advice would you give to whomever is nominated as it goes forward?

BORK: I don't think I can give any very good advice. After all, as I once put it, it's like asking Custer how to deal with the Indians. I didn't do it very well. But I -- you know, they're going to -- they're going to insist upon answers to questions, "How will you vote on this? How will you vote on that?" Which I think is a very unfortunate practice, but that's what they are doing now in the Senate.

KAGAN: So would you tell a nominee not to answer those questions?

BORK: Either to find a way not to answer it on the grounds that they shouldn't be answered, or to give straightforward answers, which will mean that he will line up a lot of opposition.

KAGAN: And one final question. Is it worth it to go through the process in order to have that honor of serving on the high court?

BORK: Well, yes, it's worth it to go through the process. It's unfortunate that the process is as corrupt as it is. But it's worth it. And if you lose, it's a character-building experience.

KAGAN: Well, you have...

BORK: It's like a losing football team.

KAGAN: You had the opportunity and the experience. Judge Bork, thank you for calling in today.

BORK: OK.

Ron:
Too bad he didn't ask him about his notions of turning the USA into a Parliamentary democracy, with the legilatures having unlimited power, and SCOTUS a mere footnote.
7.3.2005 4:55pm
E. Shen:
Am I the only one driven crazy by Bork's use of language? When it comes to liberal positions, Bork doesn't hesitate to brand it as such. But if you want to call something conservative, he'll stop you and say its a matter of "sticking to the actual Constitution." Sheesh. As if both wings weren't guilty of making the court into a "political and cultural institution."
7.3.2005 6:21pm
erp (mail):
I'm glad this so short because I felt my blood pressure rising and steam building up between my ears. The CNN person was a lightweight on the same order as the nitwits on the Judiciary Committee during his hearings. Leahy, Kennedy, Biden, I don't remember them all. The hearings were on CSPAN when the camera was fixed and there was no leftwing commentary. While Bork is trying to answer complex questions, their eyes were glazing over. It made me so angry, I wrote long screeds about it which I can't find now.

Even though a part of me wishes the president would nominate Bork again, the saner side knows that wouldn't be a good idea. Too much has happened since then.

In the end, perhaps Bork's name becoming a catch phrase and going into the dictionary as a description of the epitome of the doctrine of personal destruction will be a longer lasting legacy than actually sitting on the court.
7.3.2005 7:45pm
Challenge:
"As if both wings weren't guilty of making the court into a "political and cultural institution."

This is ridiculous. No, they are NOT both guilty, or at least equally guilty. For instance, in the debate on abortion, do you see ANY conservative calling for a similar activist approach as to what the Court did in Roe and continues today? That is, reading the promise of "life and liberty" to outlaw abortion. Of course not. Conservatives only argue for abortion to be decided by the states (or at least an elected branch at the federal level). Conservatives are quite willing to play by the rules of democratic government, and take their case to the American people. Liberals, perhaps because of insecurity in their position or lack of esteem for democracy and the rule of law, wish to force their policy preferences on an unwilling nation.
7.3.2005 8:45pm
Paul Gowder (mail):
"homosexual normalization?!" As "activist?"

I'm sorry guys, but this sort of blatant bigotry is exactly what makes those of us on the left despair of ever living in the same universe as you.
7.3.2005 10:09pm
Counterpoint (mail):
Reading "life and liberty" to outlaw abortion would also require reading the constitution to apply to non-state action, so that counter example isn't symmetrical.

As for conservatives going to the people instead of the courts, well, one might point out 1. campaign finance reform, 2. affirmative action, 3. California's medical marijuana law, 4. Oregon's assisted suicide law. Conservatives go to court to overturn decisions of the elected branches all the time, but they only call it activism when liberals do it.

"As if both wings weren't guilty of making the court into a "political and cultural institution."

This is ridiculous. No, they are NOT both guilty, or at least equally guilty. For instance, in the debate on abortion, do you see ANY conservative calling for a similar activist approach as to what the Court did in Roe and continues today? That is, reading the promise of "life and liberty" to outlaw abortion. Of course not. Conservatives only argue for abortion to be decided by the states (or at least an elected branch at the federal level). Conservatives are quite willing to play by the rules of democratic government, and take their case to the American people. Liberals, perhaps because of insecurity in their position or lack of esteem for democracy and the rule of law, wish to force their policy preferences on an unwilling nation.
7.3.2005 10:12pm
Lynxx Pherrett (mail) (www):
CNN transcript is here. The Bork phone call is at the end.
7.3.2005 10:45pm
Challenge:
Affirmative Action is a matter of applying constitutional principles uniformly, and campaign finance reform is a matter at the core of the First Amendment. Most conservatives do not have a problem with striking down laws, so long as there is an actual (or even arguable) constitutional breach. The medical marijuana case isn't anti-democratic because that probably represents the NATIONAL majority's opinion on the matter. And it is the conservatives on the Court, mind you, that stood by the state's right to medical marijuana. So how does that help your argument?

"Reading "life and liberty" to outlaw abortion would also require reading the constitution to apply to non-state action, so that counter example isn't symmetrical."

State omission can be treated the same as action. This is at the heart of the equal protection clause. Just as a state refusing to treat blacks and whites equally under the law is unconstitutional so COULD the Court find that treating the unborn differently offends the Constitution. Now, I don't believe that is sound reasoning, but if conservatives wanted to pervert the Constitution in the same way liberals have in order to further their agenda, they could do it. But they don't, and they won't. At least to the same degree.
7.3.2005 11:39pm
Robert Schwartz (mail):
It is truly a tragedy that Prof Bork was not confirmed.
7.3.2005 11:54pm
Ed Guest:
My new favorite blog: rel="nofollow" href="http://iseebluepeople.blogspot.com">Better Dead than Red.
7.6.2005 3:10pm