Letter Accepting the
Resignation of Robert H. Bork as United States Circuit Judge
Dear
Bob:
It
is with deep sadness that I accept your decision to resign as United States
Circuit Judge for the District of Columbia Circuit, effective
The
unprecedented political attack upon you which resulted in the regrettable
Senate action was a tragedy for our country. All Americans are the poorer today
for not having your extraordinary talents and legal skills on the High Court.
And
yet, as I read your letter of resignation, I cannot help but feel a warm
admiration for the difficult decision you have made. There is, as you state, a
lively public debate brewing in this country, fueled in no small part by your
confirmation hearings -- a debate over the proper role of the judiciary in our
system of representative self-government. That debate has advocates who view
the courts and the Constitution as mere instruments for political advantage.
Effective advocacy of a more traditional approach to the judicial function
occurs too infrequently. Your recent experience, against a background of
unswerving commitment to the doctrine of judicial restraint, makes you uniquely
well suited to carry that debate forward.
For
your many years of dedicated public service, especially the last six on the
Court of Appeals, your country and I thank you. For your courageous adherence
to conviction and refusal to forsake your ideals, your country and I salute
you. For daring to embark on this new course in selfless service of the cause
of truth and justice in the public arena, your country and I remain in your
debt.
While
your public service on the Court of Appeals will be sorely missed, I am
confident that your writings and other contributions as a private citizen are destined
to have a most profound and lasting impact on the Nation.
Best
wishes for success in your future endeavors.
Sincerely,
Ronald
Reagan
Dear
Mr. President:
Six
years ago you appointed me to the United States Court of Appeals for the
District of Columbia Circuit. That was a great honor and I continue to be
grateful to you for it. The task of serving the law and the ends of justice has
made the last six years absorbing and fulfilling.
It
is, therefore, with great reluctance, and only after much thought and
discussion with my family, that I have now decided to step down from the bench.
This decision is the more difficult because of what I owe to you, to the many
Americans who have written to me in the last six months to express their
support, and, indeed, to all Americans our system of justice serves. Because I
recognize these debts and obligations, I want to explain the course I have
chosen.
The
crux of the matter is that I wish to speak, write, and teach about law and
other issues of public policy more extensively and more freely than is possible
in my present position. As a sitting judge on a very busy court, I cannot
devote the time and energy I wish to public discourse. Moreover, constraints of
propriety and seemliness limit the topics a federal judge may address and the
public positions he may advocate. My experience as your nominee for Associate
Justice of the Supreme Court of the
You
nominated me to my present court and to the Supreme Court precisely because I
do speak for the traditional view of the judge's role under the Constitution.
It is a view that goes back to the founding of our nation and was ably
articulated by, among others, James Madison, Thomas Jefferson, Alexander
Hamilton, and Joseph Story. It has been espoused by the greatest judges in our
history. That view, simply put, is that a judge must apply to modern
circumstances the principles laid down by those who adopted our Constitution
but must not invent new principles of his own.
A
few years ago I said:
In
a constitutional democracy the moral content of law must be given by the
morality of the framer or the legislator, never by the morality of the judge.
The sole task of the latter -- and it is a task quite large enough for anyone's
wisdom, skill, and virtue -- is to translate the framer's or the legislator's
morality into a rule to govern unforeseen circumstances. That abstinence from
giving his own desires free play, that continuing and self-conscious
renunciation of power, that is the morality of the
jurist.
That
was my view then. It is my view now. Though there are many who vehemently
oppose it, that philosophy is essential if courts are to govern according to
the rule of law rather than whims of politics and personal preference. That
view is essential if courts are not to set the social agenda for the nation, and if representative democracy is to maintain its
legitimate spheres of authority. Those who want political judges should reflect
that the political and social preferences of judges have changed greatly over
our history and will no doubt do so again. We have known judicial activism of
the right and of the left; neither is legitimate.
My
desire to participate in the public debate on these matters is what prompts my
decision to leave the bench at this time. I had considered this course in the
past but had not decided until the recent confirmation experience brought home
to me just how misfocused the public discourse has
become. A great many supporters have written to urge that I continue in public
service. The decision I have made will, I believe, allow me to do just that. My
views on these matters are of long standing. Because of my experience as your
nominee, I am now in a better position to address the issues than ever before.
Though
I am sure this decision is the correct one, I find, as the time of my departure
draws near, that the prospect of leaving the federal judiciary fills me not
merely with reluctance but with sadness. Any lawyer should be deeply honored to
be a federal judge and to serve with a nationwide corps of the most dedicated
men and women one is likely ever to meet. The work of an appellate judge may be
the aspect of the legal profession for which I am best suited. I have actively
enjoyed the day-to-day work of judging -- the exchanges with lawyers at oral
argument, the discussions with colleagues and clerks in arriving at a correct
decision, and the effort to craft the best opinion one can. Trying with all
one's capacities to do justice according to law is a deeply satisfying
experience, both intellectually and emotionally. I will miss it more than I can
say. I find some consolation in leaving behind a record of which I believe I
may be proud, and one by which I am content to be judged.
In
choosing a date for my departure, I have considered, among other factors, the
desirability of leaving time for the nomination and confirmation of my
successor as well as the importance of beginning my new work without undue
delay. It will, however, take a few weeks to complete work on hand. I ask,
therefore, that you accept my resignation as Circuit Judge,
With
deep gratitude for your confidence in me, for appointing me to this court and
nominating me to the Supreme Court, I will always remain
Yours
truly,
Robert
H. Bork