Books by Mark Gitenstein

Released: Oct. 1, 1992

Here, the former Chief Counsel to the Senate Judiciary Committee contends, not always plausibly, that the Senate's 1987 rejection of Supreme Court nominee Robert Bork was a principled rebuff by the American people of a jurisprudential radical. In explaining his judicial philosophy in The Tempting of America (1990), Bork contended that the Senate's rejection of his candidacy for the Supreme Court illustrated the deplorable politicization of America's legal system. He also argued that his theory of ``original intent''—that is, that judges should construe the Constitution and especially the Bill of Rights narrowly and in accordance with the perceived intent of the original draftsmen of these texts, and without finding unenumerated rights in them—is the only legitimate interpretive framework. Gitenstein does little to dispel Bork's charge of politicization: His vivid descriptions of Sen. Joseph Biden's meetings with media and liberal-interest groups demonstrate plainly the nomination-process's political dimension. But he makes an arresting case that Bork's philosophy of originalism radically departs from the jurisprudential mainstream and that, if accepted by the full Court, it would have resulted in the repudiation of a half century of case law in the areas of civil rights, privacy, voting rights, and other fields. Gitenstein is less persuasive when he appears to argue, frequently citing opinion polls, that Bork's defeat was the result, not of a partisan political campaign, but of a considered judgment by the American people of Bork's judicial philosophy. He asserts finally that although the Senate was unable to prevent the creation of a conservative majority on the Supreme Court in the wake of Bork's defeat, the post-Bork Court is considerably more solicitous of ``unenumerated rights'' of individuals than if Bork were on the Court. Historically valuable as a politically partial account of the Bork nomination, but inadequate as an examination of Bork's jurisprudence. Read full book review >