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Tradition and Morality in Constitutional Law
The Francis Boyer Lectures on Public Policy TRADITION AND MORALITY IN CONSTITUTIONAL LAW Robert H. Bork American Enterprise lnstitute for Public Policy Research TRADITION AND MORALITY IN CONSTITUTIONAL LAW The Francis Boyer Lectures on Public Policy TRADITION AND MORALITY IN CONSTITUTIONAL LAW Robert H. Bork American Enterprise Institute for Public Policy Research ISBN 0-8447-1370-8 Library of Congress Catalog Card Number 84-62693 @1934 by the American Enterprise Institute for Public Policy Research, Washington, D.C., and London. All rights reserved. No part of this publication may be used or reproduced in any manner whatsoever with· out permission in writing from the American Enterprise Insti tu te except in the case of brief quotations embodied in news articles, critical articles, or reviews. The views expressed m the publications of the American Enterprise Institute are those of the authors and do not necessarily reflect the views of the staff, advisory panels, officers, or trustees of AEI. "American Enterprise Institute" and @) are registered service marks of the American Enterprise Institute for Public Policy Research. Printed in the United States of America American Enterprise Institute 1150 Seventeenth Street, N. W, Washington, D. C. 20036 THE FRANCIS BOYER LECTURES ON PUBLIC POLICY The American Enterprise Institute has initiated the Francis Boyer Lectures on Public Policy to examine the relationship between business and government and to develop contexts for their creative interaction. These lectures have been made possible by an endowment from the SmithKline Beck man Corporation in memory of Mr. Boyer, the late chairman of the board of the corporation. The lecture is given by an eminent thinker who has developed notable insights on one or more aspects of the relationship between the nation's private and public sectors. -
Disarming the Confirmation Process
Cleveland State Law Review Volume 50 Issue 4 Article 3 2003 Disarming the Confirmation Process Michael M. Gallagher Law Clerk, United States District Court, Eastern District of Texas Follow this and additional works at: https://engagedscholarship.csuohio.edu/clevstlrev Part of the Constitutional Law Commons, and the Judges Commons How does access to this work benefit ou?y Let us know! Recommended Citation Michael M. Gallagher, Disarming the Confirmation Process, 50 Clev. St. L. Rev. 513 (2002-2003) This Article is brought to you for free and open access by the Journals at EngagedScholarship@CSU. It has been accepted for inclusion in Cleveland State Law Review by an authorized editor of EngagedScholarship@CSU. For more information, please contact [email protected]. DISARMING THE CONFIRMATION PROCESS MICHAEL M. GALLAGHER1 I. INTRODUCTION .................................................................... 515 II. BACKGROUND...................................................................... 520 A. The Constitutional Meaning of “Advice and Consent”................................................. 520 B. A [More Recent] History of the Confirmation Process ............................................ 522 1. The Bork Nomination........................................... 524 2. President George H.W. Bush................................ 526 3. President Bill Clinton ........................................... 526 4. President George W. Bush ................................... 529 a. Defining the Rules of the Game ...................................................... -
Bloody Crossroads African-Americans and the Bork Nomination: a Bibliographic Essay J
Howard University Digital Howard @ Howard University Selected Speeches J. Clay Smith, Jr. Collection 1-11-1992 Bloody Crossroads African-Americans and The Bork Nomination: A Bibliographic Essay J. Clay Smith Jr. Follow this and additional works at: http://dh.howard.edu/jcs_speeches Part of the Constitutional Law Commons Recommended Citation Smith, J. Clay Jr., "Bloody Crossroads African-Americans and The Bork ominN ation: A Bibliographic Essay" (1992). Selected Speeches. Paper 151. http://dh.howard.edu/jcs_speeches/151 This Article is brought to you for free and open access by the J. Clay Smith, Jr. Collection at Digital Howard @ Howard University. It has been accepted for inclusion in Selected Speeches by an authorized administrator of Digital Howard @ Howard University. For more information, please contact [email protected]. 173 "Bloody Crossroads" AFRICAN-AMERICANS and the BORK NOMINATION: A BIBLIOGRAPHIC ESSAY J. Clay Smith, Jr.* Two diverging traditions in the mainstream of Western political thought-one "liberal," the other "conservative"-have competed, and still_ compete, for control of the democratic process and of the American constitutional system; both have controlled the direction of our judicial policy at one time or another. - Alexander M. Bicke11 The clash over my nomination was simply one battle in-this long-running war for control of our legal culture. - Robert H. Bork2 On July 1, 1987 President Ronald Reagan announced his nomination of Judge Robert H. Bork to succeed Justice Lewis Powell * Professor of Law, Howard University School of Law. Alexander M. Bickel, The Morality Of Consent 3 (1975), hereafter, Morality Of Consent. 2 Robert H. Bork, The Tempting of America The Political Seduction of the Law 2 (1990), hereafter, Tempting of America. -
Notes and Sources for Evil Geniuses: the Unmaking of America: a Recent History
Notes and Sources for Evil Geniuses: The Unmaking of America: A Recent History Introduction xiv “If infectious greed is the virus” Kurt Andersen, “City of Schemes,” The New York Times, Oct. 6, 2002. xvi “run of pedal-to-the-medal hypercapitalism” Kurt Andersen, “American Roulette,” New York, December 22, 2006. xx “People of the same trade” Adam Smith, The Wealth of Nations, ed. Andrew Skinner, 1776 (London: Penguin, 1999) Book I, Chapter X. Chapter 1 4 “The discovery of America offered” Alexis de Tocqueville, Democracy In America, trans. Arthur Goldhammer (New York: Library of America, 2012), Book One, Introductory Chapter. 4 “A new science of politics” Tocqueville, Democracy In America, Book One, Introductory Chapter. 4 “The inhabitants of the United States” Tocqueville, Democracy In America, Book One, Chapter XVIII. 5 “there was virtually no economic growth” Robert J Gordon. “Is US economic growth over? Faltering innovation confronts the six headwinds.” Policy Insight No. 63. Centre for Economic Policy Research, September, 2012. --Thomas Piketty, “World Growth from the Antiquity (growth rate per period),” Quandl. 6 each citizen’s share of the economy Richard H. Steckel, “A History of the Standard of Living in the United States,” in EH.net (Economic History Association, 2020). --Andrew McAfee and Erik Brynjolfsson, The Second Machine Age: Work, Progress, and Prosperity in a Time of Brilliant Technologies (New York: W.W. Norton, 2016), p. 98. 6 “Constant revolutionizing of production” Friedrich Engels and Karl Marx, Manifesto of the Communist Party (Moscow: Progress Publishers, 1969), Chapter I. 7 from the early 1840s to 1860 Tomas Nonnenmacher, “History of the U.S. -
WHAT ROBERT BORK WILL MEAN for the SUPREME COURT and AMERICAN JUSTICE by Jamie Raskin, Senior Fellow, People for the American Way
BORKING AMERICA WHAT ROBERT BORK WILL MEAN FOR THE SUPREME COURT AND AMERICAN JUSTICE By Jamie Raskin, Senior Fellow, People For The American Way photo courtesy of Gage Skidmore The key thing I think the president is going to do... It’s going to be appointing Supreme Court and Justices throughout the judicial system. As many as half the Justices in the next four years are going to be appointed by the next president. -Mitt Romney photo courtesy of Gage Skidmore YES, AMERICA, ROBERT BORK IS BACK Many presidents leave their most enduring legacy to the nation Romney is also presumably trusting that, ever since Bork resigned in the Justices that they name to the Supreme Court and the from the United States Court of Appeals for the District of federal judges that they put on the bench. So what inspired Columbia Circuit to launch a career as a conservative polemicist former Massachusetts governor Mitt Romney to name former with the American Enterprise Institute,1 most of the public has judge Robert Bork to co-chair his presidential campaign advisory tuned out his increasingly bitter diatribes against the “feminized”2 committee on law, the Constitution and the judiciary? Supreme Court and his embarrassing tirades against “American cultural decline,” and the social “rot and decadence” of our country. Surely Governor Romney meant to persuade activists on the Religious Right and in the Tea Party that he is ready to do battle- But Romney’s elevation of Bork to advise him on the kinds -not just to entrench the Corporate Court that rules today, but to of judges who should serve on the Supreme Court and the nominate people to the bench who will dismantle what remains federal bench spells serious trouble for the American people. -
Antonin Scalia*
ANTONIN SCALIA* I was a friend of Bob Bork’s for many years. I worked with him, under Attorney General Edward Levi, in Gerald Ford’s Justice Department, where he was Solicitor General and I was Assistant Attorney General for the Office of Legal Counsel. Our other colleagues included Carla Hills and, later, Rex Lee as heads of the Civil Division, Richard Thornburgh as head of the Criminal Division, and Stanley Pottinger as head of the Civil Rights Division—a distinguished group, but none more distin‐ guished than Bork. Later, I worked with Bob as a colleague on the United States Court of Appeals for the District of Columbia Circuit, where I very much liked the high diet of administrative law cases, and he not so much (I always thought he should have accepted the Administration’s earlier offer to nominate him for the Second Circuit, where his interests in antitrust and business law would have had fuller play). Robert Bork was a rare combination of integrity and intellec‐ tual brilliance. And it was both of those qualities that led to the regrettable rejection of his nomination to the Supreme Court. His integrity caused him, as the ranking officer at the Depart‐ ment of Justice after the resignations of the Attorney General and Deputy Attorney General, to execute President Nixon’s directive to fire Archibald Cox. As he explained it, the Presi‐ dent had the lawful authority to fire Cox (who had no inde‐ pendent status protected by law, as later Independent Counsels had); and while it was appropriate for some of the President’s appointees to register their disagreement with that action by resigning, it was not appropriate, or, indeed, compatible with the Constitution, for all presidential appointees to denude the Justice Department of leadership, thereby frustrating lawful presidential action. -
Dan Savage Speech Surprises and Stuns
Wednesday, February 1, 2017 Volume CXXXVII, No. 17 • poly.rpi.edu Features Page 12 Sports Page 16 EDITORIAL Page 4 Tyler The majesty of Carney modern systems Maria Bringing joy to a Kozdroy special freshman hall RPI Ballroom event proves to be an Men’s swimming goes undefeated for Staff Expanding use of exciting new experience entire season Editorial EMPAC for students CAMPUS EVENTS ADMINISTRATION Dan Savage speech Planned improvements to School of Science surprises and stuns Peter Gramenides Senior Reporter DEAN CURT BRENEMAN OF THE RENSSELAER SCHOOL OF SCIENCE announced several key strategic initiatives during the spring town meeting that will be culminated over the coming years while celebrating recent successes in scientific research and expansions within the School of Science. According to Breneman, several faculty members have recently received national and international recognition for their work. These faculty members include Dr. Chulsung Bae who received a $2.2 million grant as a part of an ARPA-E effort to overcome current battery and fuel cell limitations. In addition, Dr. Heng Ji was invited to join the World Economic Forum’s Global Future Council and Dr. Fran Berman was confirmed by the U.S. Sen- ate to serve on the National Council of the Humanities. Six new faculty members have also recently joined the Rensselaer School of Science in the fields of Computer Science, Chemistry and Chemical Biology, and Mathematical Sciences. In future expansions, Breneman plans to focus on diver- sity and inclusion in recruiting both faculty members and prospective students. The School of Science also hopes to attract diverse groups to science and focus on expanding student retention and graduation rates by 2020 through Brookelyn Parslow/The Polytechnic SPEAKER VISITS RPI campus for discussion about sex, love, and relationships. -
The Unjudiciousness of Originalism – a Cover for Reactionary Bias from the Bench
The Unjudiciousness of Originalism – A Cover for Reactionary Bias from the Bench With the impending confirmation of Amy Coney Barrett, another self-described “originalist” to the Supreme Court, many of us, all too belatedly, I confess, are trying to get a clear vision of what this judicial philosophy really is all about. Most famously championed by the late Supreme Court justice Antonin Scalia, whom Barrett characterizes as her mentor, originalism is also claimed to be the legal philosophy of Supreme Court justices Clarence Thomas, Neil Gorsuch, Samuel Alito, John Roberts, and Brett Kavanaugh. To qualify this list, Justice Roberts admits only to a softer version of the philosophy, one which allows for consideration of subsequent reflection on a matter, while Kavanaugh has confessed only to being a “textualist”, while being widely considered by others to being in the originalism fold. Originalism as an explicit judicial philosophy is often traced back to Judge Robert Bork, who in the early seventies introduced it as a set of “neutral principles”. Since then, originalism is almost always associated with contemporary political conservative ideology and especially with members and supporters of the Federalist Society, which was formed by conservatives and libertarians in 1982 to promote originalism and associated legal philosophies. In recent years, more and more judges of this ideological bent have been appointed to the federal bench, and it is incumbent on us to come to grips with what it is all about. For too long, judges have taken cover behind this philosophy and shielded themselves from the discontent and suspicion of those they purportedly serve on the insinuated grounds that originalism is a legal theory and as such its proper evaluation is a matter of expert professional judgment by those in the field, beyond the ken of the people at large. -
What Kind of Judge Is Brett Kavanaugh?
de•C ARDOZOnovo L AW R EVIEW WHAT KIND OF JUDGE IS BRETT KAVANAUGH? A Quantitative Analysis Elliott Ash† & Daniel L. Chen† This article reports the results of a series of data analyses of how recent Supreme Court nominee Brett Kavanaugh compares to other potential Supreme Court nominees and current Supreme Court Justices in his judging style. The analyses reveal a number of ways in which Judge Kavanaugh differs systematically from his colleagues. First, Kavanaugh dissents and is dissented against along partisan lines. More than other Judges and Justices, Kavanaugh dissents at a higher rate during the lead-up to elections, suggesting that he feels personally invested in national politics. Far more often than his colleagues, he justifies his decisions with conservative doctrines, including politicized precedents that tend to be favored by Republican-appointed judges, the original Articles of the Constitution, and the language of economics and free markets. These findings demonstrate the usefulness of quantitative analysis in the evaluation of judicial nominees. TABLE OF CONTENTS INTRODUCTION........................................................................................ 71 I. PREVIOUS LITERATURE ..................................................................... 72 † Assistant Professor of Law, Economics, and Data Science, ETH Zurich. Contact: [email protected]. † Professor at the Toulouse School of Economics and the Institute for Advanced Study in Toulouse, Directeur de Recherche at Centre National de la Recherche Scientifique (CNRS), -
Addressing Challenges Posed by Civic Education Through Public Engagement With
Law is Not a Spectator Sport: Addressing Challenges Posed by Civic Education through Public Engagement with the Supreme Court A Senior Project presented to the Faculty of the Political Science Department California Polytechnic State University, San Luis Obispo In Partial Fulfillment of the Requirements for the Degree Bachelor of Science in Journalism by Erica Lauren Bashaw March, 2011 © 2011 Erica Lauren Bashaw TABLE OF CONTENTS Introduction 1 I. The Nature of the Problem 4 II. Three Contributing Factors 8 A. The Media Aren’t Telling the Whole Story B. The Poor State of American Civic Education C. And the Court isn’t Helping III. The Court’s Role in Public Relations 28 A. What is Public Relations? B. Why the Court Should Care about Public Relations IV. Public Participation and the Judiciary 31 A. Citizens’ Assemblies B. Consensus Conferences C. The Hybrid Alternative Conclusion 42 Bibliography 44 ii Acknowledgments This project is the culmination of my studies at Cal Poly and an effort to combine my interests in journalism, public relations, and law. Many thanks are owed to my professors, particularly those in the departments of journalism and political science. I am grateful to John Soares and Doug Swanson who have both helped me immensely in becoming a better journalism and public relations student. In particular, my special thanks are owed to my senior project advisor, Ron Den Otter, for being a treasured professor and friend. Throughout my undergraduate career, Ron has read my work extremely carefully and has taken the time to offer insightful comments and suggestions while always respecting my voice. -
Taming Judicial Activism: Judge Robert Bork's Coercing Virtue
Yoo: Taming Judicial Activism: Judge Robert Bork's Coercing Virtue Taming Judicial Activism: Judge Robert Bork's Coercing Virtue John Yoot INTRODUCTION According to urban legend, the Yale Law School once con- sidered Frank Easterbrook, then at the University of Chicago, for an appointment. The proposal failed, it is said, because some professors believed that appointing Easterbrook would "unbal- ance" the faculty. Apparently, the faculty had its hands full ar- guing with the only other conservative at the school. That man, of course, was Robert Bork. More than a decade after he had left, the Yale Law faculty was still arguing with Judge Bork. A young student at the time might be forgiven for expecting Judge Bork to show up to re- spond. But after his unjust Supreme Court confirmation hear- ings, he decided to join the American Enterprise Institute (AEI) rather than return to the courts or to law teaching. As a scholar at AEI, he reached far more minds than he could arguing inside Yale's cold gothic halls. It was as a student that I read his The Tempting of America,' and then his classic The Antitrust Para- dox.2 By the time I had joined the Berkeley faculty, he had pub- lished his Slouching towards Gomorrah.3 While Judge Bork's claim of American moral and cultural decline did not ring true to me, I enjoyed his provocative suggestion that Congress could override Supreme Court decisions by simple majority vote. 4 So it was with great excitement that I received a call from Judge Robert Bork's secretary. -
Savage, Dan (B
Savage, Dan (b. 1964) by Linda Rapp Encyclopedia Copyright © 2015, glbtq, Inc. Entry Copyright © 2006 glbtq, Inc. Reprinted from http://www.glbtq.com Dan Savage speaking at Best known for his internationally syndicated sex-advice column, Dan Savage is also Bradley University in the author of books chronicling his and his partner's experiences in adopting a child Peoria, Illinois (2004). and dealing with the issue of same-sex marriage. Photograph by Wikimedia Commons contributor blahedo. Dan Savage, born October 7, 1964, was the third of the four children of William and Image appears under the Judy Savage. While he was a boy, the family lived on the upper floor of a two-flat Creative Commons house in Chicago. His maternal grandparents and several aunts and uncles occupied Attribution ShareAlike the downstairs apartment. So many other relatives lived nearby, wrote Savage, that "I 2.5 license. couldn't go anywhere without running into someone I was related to by blood or marriage." This became problematic for Savage when, at fifteen, having realized that he was gay, he wanted to explore Chicago's gay areas but was apprehensive since he was not yet prepared to come out to his Catholic family. Nevertheless, he made occasional trips to a North Side bar, Berlin, where he could be "outrageously out." Adding to his stress at the time was the ending of his parents' marriage. They divorced when he was seventeen. At eighteen Savage disclosed his sexual orientation to his family, who, he stated, "became, after one rocky summer, aggressively supportive." Despite his family's eventual acceptance of his homosexuality, Savage wanted to get away from Chicago; so he decided to attend the University of Illinois at Champaign-Urbana for college.