8 I CHRONICLESnVIEWSnTHE (POLITICALLY) SUPREME COURTnby Jack D. DouglasnThe great sound and fury over the nomination of RobertnBork to the U.S. Supreme Court included many grandnproclamations from all sides concerning the original intentionsnof the constitutionalists and the relevance of thosenintentions to our society today. It is clear to anyone with anmodicum of knowledge about the great issues involved thatnnnthere are rational grounds for sincere disagreements onnthese matters. Many of us believe, for example, that JudgenBork’s “legal positivism” denies the basic ideas of humannnature, conscience, and natural rights that form the verynfoundation of the Constitution. Others would insist that hendoes not allow for sufficient interpretation to meet emergentnand urgent social trends. But the most obvious fact of all tonanyone really concerned with the original intentions andnwith the practical problems today of governing our societynby law, rather than by the impassioned sparring of politiciansnfor advantages, is that the entire proceedings were a travestynof the original intention in providing for the consent of thenSenate to appointments to the federal bench.nThe basic purpose of making the federal judges appointeesnof the President and contingent upon the consent of thenSenate, rather than making them elected officials, was tonbuffer or insulate them from the partisan passions of politics.nArchibald Cox, one of the foremost liberal interpreters ofnthe Constitution, has forcefully stated the vital importancenof this basic purpose today: “If the federal judiciary loses itsnindependence through gradual politicization — if the peoplencome to see the court as just one more policy-makingnbody—it will lose the capacity to render authoritativendecisions upon the great questions of governmental structurenand individual liberty left unanswered by the framers.”nRegardless of our differing analyses of Professor Bork andnhis principles, no reasonable observer of the mass-mediatednSenate proceedings vi’ill deny that they have been a ragingnvortex of political passion. Any sincere historical scholar willnalso testify that our Supreme Court appointments havenbeen periodically swept up in such vortices for most of thisncentury, but that the Court’s sweeping liberal interpretationsnin recent decades have fired those passions and that thenpassions have grown more fierce since two of RichardnNixon’s conservative nominees were rejected. Judge Bork’snnomination has become a miniature Dreyfus Affair rippingnour already tattered national consensus and blinding thenpoliticians to the whole legal rationale for their authority tonconfirm judges.nArchibald Cox has strongly decried these growing politicalnpassions and the part played in arousing them by thensweeping liberal decisions of the court: “From 1950 ton1974, the court was mandating major institutional changesnnot only in the administration of justice but in the largernsociety. The desegregation cases reordered society through-nJack Douglas is professor of sociology at the University ofnCalifornia, San Diego.n