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9 Cardozo L. Rev. 5 (1987-1988)
Foreword

handle is hein.journals/cdozo9 and id is 21 raw text is: FOREWORD David Rudenstine* Law reviews normally explicate, critique, and assess the law and its philosophical and economic underpinnings. They focus on what the law is or should be. But those are not the subjects of this issue of the Cardozo Law Review. Here the questions confronted are: should Robert H. Bork have the power of a Supreme Court Justice to make law; what should be the Senate's role in reviewing Bork's nomination for the Court; and how do academic commentators evaluate Bork's qualifications for the Court? The Realists of the 1930's1 and the Critical Legal Studies move- ment of the 1980's2 forcefully point out the indeterminate nature of law and the singular importance that a judge's political and social views have in shaping judicial interpretation and application of law. Although this premise is applicable across the spectrum of legal fields, it has special meaning for Supreme Court Justices whose primary re- sponsibility is to construe and apply the United States Constitution. Certainly Justice Jackson was sensitive to this extraordinary power when he wrote: We are not final because we are infallible, but we are infallible because we are final.3 Chief Justice Hughes was less subtle in making a related point when he stated: We are under a Constitu- tion, but the Constitution is what the judges say it is .... I This issue of the Cardozo Law Review takes Jackson's and Hughes' statements seriously. It addresses the question of who should be a justice on the Supreme Court with power to impose a constitutional rule on our nation. It does this not by the development of abstract models but by examining in particular the nomination of Robert H. Bork to the United States Supreme Court. In so doing, the effort is analogous to commentary on specific Supreme Court decisions. This issue presents a balanced view of the controversy surround- ing the Bork nomination. While the material included is only a part-and certainly only a small part at that-of the material in the * Professor of Law, Benjamin N. Cardozo School of Law. I Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 Harv. L. Rev. 1222 (1931). 2 Symposium on Critical Legal Studies, 6 Cardozo L. Rev. 691 (1985); Critical Legal Studies Symposium, 36 Stan. L. Rev. 1 (1984). 3 Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring). 4 1 M. Pusey, Charles Evans Hughes 204 (1951).

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