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Bork's Advice for Roberts:

Robert Bork's advice for Senate hearings:

Don't write or say anything about the Constitution. Judge Roberts has already satisfied that requirement. The second: Don't commit your vote at the hearings on any issues. If you are drawn into a commitment to how you will vote, you'll only be ratifying the corruption of the confirmation process. And third, don't make it obvious that you think some of the senators' questions reveal that they haven't a clue about the Constitution or its interpretations.

Public_Defender:
That sounds like advice I give to my clients: Shut up, and don't give the other side evidence that they are right about you.
9.7.2005 8:48am
Phil (mail):
I always told my clients to give the shortest truthful answer. They usually ignored em and usually paid the price.
9.7.2005 8:56am
DK:
Bork's third point should be revised: Third, don't make it obvious that you think you are smarter than the senators.

He still hasn't learned that it was more about his arrogance than about the senators lacking a clue.
9.7.2005 9:19am
mrsizer (www):
From the hearings I've watched, it doesn't appear that the Senators ask many questions. They give a lengthy, rambling speech, then stick out their tongues (oh, if only not just metaphorically) and say "well?"

It's a bit tricky to answer something like that without getting snarky.
9.7.2005 9:30am
Cecilius:
Arrogant or not, listening to some of the Senators on the Judiciary Committee opine on what the Constitution means and the what the Court held in some of its decisions is just painful.
9.7.2005 9:31am
zzyz:
You wanna give a source for that quote?
9.7.2005 10:08am
SimonD (mail):
I think that, given Joe Biden's continuing presence on the Senate Judiciary Committee, Bork's third point is entirely apposite.

Sure, Bork's attitude didn't help, but that doesn't mean he's wrong.

My advice for the Senators: accept that no matter how many times you ask about Roe, you're going to get the same answer. Accept this answer the first time, and move on. I'm sure the Senator who asked Clarence Thomas repeatedly about abortion thought he looked persistent and dillgent, but actually, he just looked ineffectual and petty. You half wanted Thomas to lose his cool and shout, "didn't you hear me the first eight times, dumbass?" - but that might not be an appropriate judicial temperament. ;)
9.7.2005 10:31am
Public_Defender:
Sure, Bork's attitude didn't help, but that doesn't mean he's wrong.
I think it does make him wrong, but not in the way that you meant.

Arrogance is one of the worst traits a judge can have, and Bork is about as arrogant as it gets. Judges, whether a muni court magistrate or a Supreme Court Chief Justice, have huge amounts of power. Modesty in the exercise of that power is one sign of a great judge.

From what I've read about Roberts, he's far, far more conservative than I'd like, but he appears to have the professional modesty needed for the position.
9.7.2005 10:41am
WHerndon (mail):
I'd be curious, Public Defender, as to who you think have been great Supreme Court justices, and whether all of them have shown modesty in the exercise of power?

Personally, I agree that such behavior is generally a good thing, though I am not sure to what extent my bias clouds my judgment as to who meets that criteria.

On a sidenote, I had a co-worker once -- a quite liberal fellow -- whose father worked with Bork and had him over the house for dinner. He said Bork was a very nice and gracious man in person, at least before his confirmation hearings.
9.7.2005 11:18am
Tom952 (mail):
I like Bork's earlier answer, when asked if he had advised Roberts on the confirmation process; "No. That's like asking George Armstrong Custer to advise how to deal with the Indians." (Hardball, Aug 8)
9.7.2005 11:43am
Jeremy (mail):
Public_Defender,

The argument that an arrogant personality leads to an arrogant jurisprudence is a pure non-sequitur.
9.7.2005 11:59am
Public_Defender:
The argument that an arrogant personality leads to an arrogant jurisprudence is a pure non-sequitur.

That's not the argument I was making, but I wasn't as clear as I could have been. Arrogant judges (like Bork) lack the ability to listen to arguments. Can you imagine anyone persuading Bork to change his position on anything?

Professionally modest judges, by contrast, are open to the idea that they just might be wrong. Arrogant and modest judges are on both ends of the political spectrum, so I'm not singling out right wingers.

Arrogant judges believe that the robe entitles them to be treated with adoration by counsel and litigants. Modest judges expect people to treat the court with respect, but the modest judges also understand that they have a duty to earn that respect every day.

Roberts appears to have the modesty required for the position. Bork has proven that he does not.
9.7.2005 12:14pm
Challenge:
"Bork has proven that he does not."

I am curious if Public Defender was old enough to actually watch and remember Bork's confirmation hearings. And if Public Defender has, as I suspect, never seen them, then what is he basing his judgment of Bork's "arrogance" on? A law prof told you so?
9.7.2005 12:27pm
marc (mail):
Perhaps acknowledging that the 9th and 10th amendments might mean what they say would have helped Mr. Bork. Arrogance without a presumption of liberty is not what we need, and fortunately Roberts comes out clean on both scores.
9.7.2005 12:44pm
Jeremy (mail):
Public_Defender,

I'm not sure that how nice a judge is to lawyers means very much in regards to a SCOTUS nomination. I'd rather have a mean old judge who gets things right than a nice listener who comes out wrong. I suspect most people would agree with that.

Likewise, the that-judge-is-too-set-in-his-ways-to-listen argument fails. I want a judge who is set in his ways if he's set in right ways. For instance, here's a hypothetical: Absolutely no credible argument can be made that a three year old boy could be executed by the Environmental Protection Agency for littering. Can you tell me a judge should listen carefully to arguments made in this case? Should he listen just as carefully to arguments made in that case as he should to legitimately close cases? I think the answer is obviously no; judicial economy demands that judges sometimes summarily reject frivolous arguments.

Judges certainly do have different thresholds for deciding when an argument is frivolous and Bork's might be rather low. But if he gets his opinions right, I don't see what the problem is. Again, I'd rather have a SCOTUS justice with a low tolerance for frivolity who gets things right than a justice with a high tolerance for frivolity who gets things wrong.
9.7.2005 1:07pm
david blue (mail) (www):
Good to know that Bork is no longer bitter.
9.7.2005 2:39pm
David Berke:
Jeremy,

If I may, I believe that Public_Defender's point was simply that the "arrogant" judge who is unwilling to listen to contrary opinions is more likely to come to an "incorrect" decision than the more "modest" judge who understands that he does not know everything, and will take other arguments into account so as to reach the proper result.

The judge who does not listen can not take into account additional information or alternative hypotheses which may well be worth listening to (I am hesitant to say "correct"). As we are all human, and make mistakes, an arrogance which permits no mistakes on our own behalf guarantees many of them.
9.7.2005 3:20pm
Guest Visitor:
I had Carl Hawkins as a dean during law school. He always gave students a polite and thoughtful ear, regardless.

He proved to me that "For instance, here's a hypothetical: Absolutely no credible argument can be made that a three year old boy could be executed by the Environmental Protection Agency for littering. Can you tell me a judge should listen carefully to arguments made in this case? Should he listen just as carefully to arguments made in that case as he should to legitimately close cases? I think the answer is obviously no; judicial economy demands that judges sometimes summarily reject frivolous arguments." -- that is, just because as a jurist he would have granted a summary judgment doesn't mean he would not do so in a thoughtful and careful manner, with good manners.
9.7.2005 6:24pm
Jeremy (mail):
David Berke,

But you must concede that sometimes judges refuse to listen to contrary opinions on a point simply because there is no reasonable contrary opinion. What we're really talking about is, for lack of a better term, what my buddies and I have always called a judge's bulls--t threshold. I don't think that an appellate judge with a low BS threshold is necessarily any worse than one with a high BS threshold. In fact, I think judges who summarily and quickly weed out loser arguments sharpen discourse, particularly in oral argument. You don't waste your time arguing in support of something that's not helping you.

Guest Visitor,

Judicial economy necessarily dictates that judges exercise different levels of care with different judicial decisions. I would sincerely hope that no judge puts much thought or care into the hypothetical I mentioned earlier but summarily rejects the wrong side's arguments. Further, I think good manners are dramatically less important than good opinions, and I bet you agree with me.

Robert Bork may be set in his ways. He may have a low BS threshold. He may be rude to the occasional lawyer. But he'd be a heck of a lot better than Tony Kennedy.
9.7.2005 7:44pm
David Berke:
Jeremy,

I cannot wholly agree with your opinion. I do "concede that sometimes judges refuse to listen to contrary opinions on a point simply because there is no reasonable contrary opinion." This, I firmly agree with. However, that was not the full scope of my argument.

The point is simple; the arrogant judge who is unwilling to concede alternative hypotheses is likely to believe that "there is no reasonable contrary opinion" but his own on countless arguments that reasonably permit numerous alternatives. (9th, 14th Amendments are particularly pertinent to him.) A man who can not be made to see the existence of reasonable alternatives should not serve as a judge.

I have read Bork's "Antitrust Paradox," and can state two things with a fairly high degree of certainy. (1) Bork is a brilliant man who may have played the largest role in forcing Antitrust to move towards truly rational law, something he should be commended for. (2) Bork is far too inclined to dismiss alternative hypotheses without any discussion, even where there are perfectly reasonable alternative arguments available. Although the book is brilliant and interesting, he often asserts as true beyond question, questionable propositions.
9.7.2005 8:23pm
Jeremy (mail):
A man who can not be made to see the existence of reasonable alternatives should not serve as a judge.

I care about outcomes. In this case, the outcomes are written opinions from the Supreme Court. If a judge writes correct opinions, it just doesn't matter to me how arrogant he is or how unwilling he is to concede alternative hypotheses.
9.7.2005 9:07pm
David Berke:
Jeremy,

Your response overlooks my point. An arrogant judge who does not consider alternatives will be "wrong" more often than a reasonable judge who can be made to see alternative points of view. Why? Man is limited, and often wrong. The ability to admit to potential error and accept new information that will allow one to reach better founded conclusions is essential.
9.7.2005 9:31pm
Bruce Hayden (mail) (www):
Let me start by stating the obvious - I have never argued a case before the U.S. Supreme Court, or, indeed, before the Supreme Court of any state either.

That said, I would think that for the most part, cases that make it to the Supreme Court have at least some merit on both sides, and so it behooves the Justices to really hear both sides. That so many decisions have dissents indicates that there is some reality to this.

Also, in response to the suggestion that judges have BS meters, I would suggest that the appelate process is the reality check on this. In my father's 47 years of practice, he argued three times before the CO supreme court, winning, losing, winning - which is the way to retire. In any case, in the last case, the trial court rejected their arguments as essentially frivilous. The appeals court affirmed, again making light of them. Then, the CO Supreme Court reversed. It wasn't frivilous after all.
9.7.2005 10:26pm
Wince and Nod (mail) (www):
I'm not sure whether Bork is arrogant. He does appear bitter, and bitterness often looks a lot like arrogance, since they both manifest as aloofness and high dudgeon. I do know that Bork has changed his opinions on Constitutional matters in public, and presumably in response to the arguments made against his former in his opinions, so I wouldn't call him set in his judicial ways.

I often find people who accuse others of arrogance are arrogant themselves. As an example, I sometimes think people are being arrogant and I also have an inflated opinion of my own intelligence, which is a form of arrogance.

I've also found that public arrogance often brings out arrogance in others, and as for arrogance in public, I can think of no group more likely to display such than a bunch of U.S. Senators.

Yours,
Wince
9.7.2005 10:54pm
Public_Defender:
Wince is right, I may have taken Bork's bitterness as arrogance. But his bitterness is telling--he appears to think that he was entitled to a seat on the Supreme Court.

On another point, I agree that judges should have strong convictions, but they must be willing to listen to a well-crafted argument that they are wrong. Even if the argument does not change a mind, the resulting opinion will be stronger because it honestly deals with the counter-arguments.
9.8.2005 5:47am
Daniel Chapman (mail):
From www.dictionary.com

Main Entry: Bork
Part of Speech: verb
Definition: to seek to obstruct a political appointment or selection; also, to attack a political opponent viciously
Etymology: from the incident involving Robert Bork, US Supreme Court nominee in 1987
Usage: politics

Now why would he be bitter?
9.8.2005 10:39am
SimonD:
On another point, I agree that judges should have strong convictions, but they must be willing to listen to a well-crafted argument that they are wrong. Even if the argument does not change a mind, the resulting opinion will be stronger because it honestly deals with the counter-arguments.
Justice Ginsburg, for example, has said that taking Scalia's draft of his dissenting opinion in U.S. v. Virginia (518 U.S.) into account improved her opinion in that case.
9.8.2005 11:03am