Say it ain't so, Elena.
Elena Kagan thinks that the "Borking" of Robert Bork during his 1987 confirmation hearings for the Supreme Court would deserve a commemorative plate if the Franklin Mint launched a "great moments in legal history" line of dishware.
This is not the time to rehearse all the reasons why Kagan is wrong on that score. Still, there is one adverse result of the Bork hearings worth dwelling on. Bork was the last Supreme Court nominee to give serious answers to serious questions. But because he was successfully anathematized by the left, no nominee since has dared show Borkian forthrightness.
Consider Monday's thunderclap from the judicial Mount Olympus: The Second Amendment right to own a gun extends to state and local government. Personally, I think Justice Clarence Thomas' separate opinion in favor of the 14th Amendment's "privileges and immunities" clause over the due process clause was the better argument. But that's a debate for another day.
The more newsworthy opinion came from rookie Justice Sonia Sotomayor. She concurred with Justice Stephen Breyer's dissent, which held that there is no fundamental right to bear arms in the U.S. Constitution. "I can find nothing in the Second Amendment's text, history or underlying rationale that could warrant characterizing it as 'fundamental' insofar as it seeks to protect the keeping and bearing of arms for private self-defense purposes," Breyer wrote for the minority.
But when Sotomayor was before the Senate Judiciary Committee one year ago for her own confirmation hearings, she gave a very different impression of how she saw the issue. Senate Judiciary Chairman Patrick Leahy asked her, "Is it safe to say that you accept the Supreme Court's decision as establishing that the Second Amendment right is an individual right?"
"Yes, sir," she replied.
Both Sotomayor and Leahy festooned their colloquies with plenty of lawyerly escape hatches. That's why Leahy asked the questions the way he did, and that's why Sotomayor answered them the way she did. It's also why he spun her answers into more than they were: "I do not see how any fair observer could regard (Sotomayor's) testimony as hostile to the Second Amendment personal right to bear arms, a right she has embraced and recognizes." He made it sound as though she was open to an expansive reading of the Second Amendment when everyone knew she wasn't. (As a judge, she was hardly a hero of the NRA.)
Here's the point: Sotomayor wasn't an exception to the rule; she was following it.
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