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 that 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.
KAGAN: And thank you for your insight on experience that not a lot of people in the United States have had.
Judge Robert Bork nominated back in 1987, was not confirmed. Justice Anthony Kennedy got that space as a second nomination.
(Credit: Right Mind)