Judicial Temperament

It was precisely the fluidity of this term that spelled trouble both for Robert Bork and the American Bar Association when four members of the ABA's Committee on the Federal Judiciary evaluated Bork as lacking proper judicial temperament, a perception largely based on his critiques of equal protection decisions by the Court. They apparently construed compassion, open-mindedness, and fairness to refer to beliefs about equality or to prejudices concerning the roles of women, ethnics, races, or people with varying sexual orientations. Bork opponents put a spin on his earlier writings that expressed a narrow view of the 14th Amendment's "equal protection" clause as evidence of a lack of judicial temperament.

In retaliation, conservatives on the Judiciary Committee attacked the ABA for permitting political or ideological issues to enter their considerations regarding Bork via the judicial temperament door. However, temperament seems precisely the way through which concerns about a nominee's commitment to equal justice might enter the nomination discourse. As with Brandies in 1916, those who opposed Bork generated the claim that the nominee was "outside the mainstream" of American legal thought and then attached this mainstream requirement to the presumably legitimate qualification of judicial temperament. To do so is a stretch, but then again, stretching is a major form of exercise in the political world.

Adapted and used with permission from George Watson and John Stookey. Shaping America; The Politics of Supreme Court Appointments. Harper Collins, 1995, pp. 75-76.