The Right Coast
July 02, 2005
Bork on O'Connor and Kennedy
By Mike Rappaport
From an interview of Robert Bork on CNN:
KAGAN: 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.