D.C. Circuit Judge defends Bork legacy


Judge Thomas Griffith

The judicial philosophy of Judge Robert Bork and his views on the role of federal judges took center stage in a discussion with Judge Thomas B. Griffith of the D.C. Circuit Court of Appeals. The lecture and question -and-answer session, co-sponsored by the Federalist Society and the Journal of Law and Public Policy. filled the John Chipman Gray Room in Pound Hall with an eager lunchtime audience.

Griffith, appointed to the Court of Appeals by President George W. Bush in 2004, and again in 2005 after the Senate allowed his first nomination to lapse, served as Senate Legal Counsel during the impeachment of President Bill Clinton and later became the general counsel of Brigham Young University, his alma mater, before his confirmation to the court.

Griffith’s discussion centered on his view, shared by Bork, that federal judges should be neutral and strive to apply neutral principles in their decision-making. Bork, who served as a Professor at Yale Law School, Solicitor General, Attorney General, and as a judge on D.C. Circuit Court of Appeals, is infamous for his 1987 appointment to the Supreme Court by President Ronald Reagan and eventual failure to be confirmed by the Senate.

Griffith first learned of Bork’s view during the summer after his 1L year at the University of Virginia, during which time he read Bork’s renowned 1971 article “Neutral Principles and some First Amendment Problems” in the Indiana Law Journal. “I found Bork’s approach . . . immensely satisfying,” he said.

Griffith described Bork’s fundamental assessment of the United States as a “Madisonian system” with two opposing principles: self-government and majority rule tempered by the need to avoid the tyranny of the majority and leaving some room for individual liberty. “Courts must be careful to [preserve this] balance,” according to Griffith. “To [forward my personal views] would undermine the very Constitutional structure.”

The Judge claimed that Bork’s approach has been accepted by conservatives and non-conservatives alike, citing Justice Thurgood Marshall’s attempt at “striving for neutrality.” Despite some acceptance, this view is “not prevailing in the law schools, in the media, or among [legal scholars].” Griffith cited the view of Ronald Dworkin and Richard Posner as examples of alternative viewpoints from the academy that judges must take more activist roles.

Griffith contrasted Bork’s search for neutrality to President Barack Obama’s pledge on the campaign trail to appoint judges who placed importance on empathy. “If we prefer nice people to mean people on our courts, [then I agree, but] not in the face of law that requires different outcomes,” he expained. Griffith emphasized that his “obligation is to the Constitution” regardless of how much empathy he felt for the “little guy” in any particular proceeding. Griffith also lamented that “the media has this penchant . . . for trying to predict a judge’s viewpoints” based on the political party of their appointer.

When questioned on the potential politicization of the “neutral principle” viewpoint, Griffith responded that “if We the People decided something liberal, then [a judge should] apply something liberal. You’re looking for a value choice expressed by others, not yourself.”A judge’s key role, according to Griffith, is to strive to “determine the value selected by We the People.””That value is expressed in law,” said Griffith, “[and] a judge must not replace the value chosen by the American people with his own.”

Judges, according to Griffith, should also not seek to correct apparently-incorrect statutes: “It is not the role of the judge to correct the faults of the American people, [as this would] bypass the Constitution’s carefully prescribed method for making law.” The Constitutional amendment procedure and the prescribed system of law-making, “in itself, is an expression of fundamental values” which gives such lawmaking powers “only to elected representatives.”Griffith also discussed alternative views of a judge’s role. Thomas Jefferson went “a step too far,” according to Griffith, when he sought “to make the judge a mere machine.” Despite this, Griffith urged the importance of following the will of the people as opposed to his own moral beliefs, as he claimed Bork would have. “I have firmly held views about right and wrong, but not as a judge. . . . [The American people] have, in fact, legislated morality.” It is up to the judge to follow that determination, according to Griffith.

When responding to a question about the recent Supreme Court decision in District of Columbia v. Heller, Griffith applauded the Court for refusing to discuss “evolving standards of morality.” “But,” he said, “does this describe how the Supreme Court works? The answer is no. . . . [The Justices often] fall[] back on their own determinations of what is right and what is wrong [and incorrectly] couch [their decisions] in evolving standards.”

“Yes, Bork is right,” concluded Griffith, “judges must be neutral. Otherwise, the system of democratic government fails.”

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