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The War Against Robert H. Bork

Suzanne Garment years approaching 1980 they had been speaking and writing with increasing vigor in fields from foreign affairs to regulatory policy, but in various ways they were still being denied entry into the fellowship of the cultivated. Surely, they thought, Ronald Reagan's victory in 1980 would change all that. In most important respects this expectation proved to be wrong. When it came to the legal profession, for instance, the Reagan administration had real power available to it because of its control over the appointment of judges. Moreover, the administration actually used its power. Yet one can gauge the effect of all this Reaganite political force on our legal culture by observing the ever more luxuriant types of radicalism now thriving at the country's elite law schools. If anything, losing the federal courts piece by piece made many people on the Left, whose views were so much out of political fashion. not chastened but bitter. In retrospect it is no surprise that this should have been so. During the early and relatively energetic Reagan years, these people had a great practical need of the courts to protect them from the President and the Republican Senate on issues from the environment to abortion. Even more important was the symbolic meaning of all the new, relatively conservative judges appointed by Reagan. Liberalism, which had once prided itself on being the party of the people, had in recent years been losing popularity and had therefore increasingly looked not to Congress but to the judiciary as its special preserve. Having come to think of the courts as in effect belonging to them, liberals were all the more disconcerted and threatened by the new conservative judges of the Reagan years. Worse yet, liberals could not successfully charge that the Reaganites were destroying the quality of the courts by making inferior appointments. The Reagan administration by and large followed prevailing standards in the matter of judicial qualifications. It did not flood the courts with unfit judges. With very few exceptions its appointments were respectable, and some were truly impressive.

N response to this situation, important Isectors of liberal opinion began undermining the idea of the apolitical Supreme Court. the very principle that liberalism had once l8/COMMENTARY JANUARY 1988

defended so vigorously. When a prominent liberal viewed Bork as in effect a holder of title to one law professor, Laurence H. Tribe of Harvard, of the nine seats on the Court. argued in God Save This Honorable Court This was not because they saw Bork as a pre (1985) that Supreme Court appointments had never been anything other than grossly and patently political. he was merely dressing up and codifying the changing liberal fashion. There is irony here. Twenty years ago at the Yale Law School, another liberal professor, the late Alexander M. Bickel, was teaching his young- er colleague Robert Bork about the virtues of judicial restraint. Judges, according to Bickel, should be chosen non-democratically but should behave from that point on with great deference toward the decisions of democratically elected officials. In this Bickel was speaking from the mainstream tradition of liberal thought. By the time we arrive at the view of the liberal. Professor Tribe, we are hearing that judges are chosen through politics and should be given very wide license to override the legislature in the name of their own conception of justice. In 1986, when President Reagan nominated the very conservative Judge Antonin Scalia to the Supreme Court, there was no significant outcry from liberals. Scalia, the commentators explained at the time, was the first Italian American to be named to the Court. He had a base of political power in the Italian-American community. With his Catholicism and his many children, he was un- touchable. In comparison with the frank cynicism of this kind of talk, the vague old idea of a "Jewish seat" or a "black seat" was a genteel anachro- nism. But the other side of the coin was soon to show itself. If a controversial conservative candidate was untouchable because he had an outside constituency, with a similar candidate who had no such clout—a candidate like Bork—it would be no holds barred. Long before Bork's nomination this year, liberals had begun to develop a rationale for chal- lenging just such a candidate. even one (like Bork) of the highest quality. Still. beyond the general arguments there was something special about Bork that simply drove his opponents into a frenzy. As Linda Greenhouse of the New York Times put it, "a kind of metaphysical shudder . . . ran through the liberal community" when Bork appeared clearly on the horizon. But why? The best way to answer this question is to turn it on its head and ask why conservatives were so enthusiastic about putting Bork on the Court. ONSERVATIVE admirers of Bork had pushed for his nomination from the very Cbeginning of the Reagan administration. When he was passed over for Scalia, there was among conservatives attentive to these matters a sense not just of disappointment but of injustice. These people thought highly of Scalia, but they dictable right-winger. To he sure, he had the Neither did Bork. His writings made no attempt "correct" conservative views. He was a proponent to conceal or soften their own message. He of judicial restraint. He did not like the Court's was willing to say what he thought and just as reasoning in Roe v. Wade, the decision legalizing willing to take it back if he concluded he had been abortion. As a judge on the District of Columbia wrong. He was unashamed of his conservative Court of Appeals, he had refused to rule that a politics. man had a right of privacy allowing him to prac- All the more amazing was it, then, that he tice homosexual acts in the Navy. He was the author should have risen to undisputed eminence as a of a hook, The Antitrust Paradox, which rigorously scholar at one of the great bastions of liberal criticized some of the grounds on which the jurisprudence, the Yale Law School. He had won government habitually brought antitrust at the game whose rules had been established by prosecutions. his ideological enemies, and he had done so But to conservatives Bork was far more than a without genuflecting toward them and their views. collection of views. He had become a symbol of In short, the symbolic significance of the Bork the intellectual force of contemporary American appointment to conservatives lay in the challenge conservatism and an exemplar of its success in it represented to the liberal monopoly over the challenging previously dominant liberal ideas. great academic institutions and even over the idea It was appropriate that he had come out of the of intellectual merit itself. It was for the same University of Chicago. Among American academ- reason—and not because of some argument over ics, those who defend free markets and mistrust legal doctrines or the balance of the Court—that government regulation have traditionally been liberal organizations fought against his treated like moral lepers. As a result, most pro- nomination as if their very lives depended on fessors with views like these have written their defeating him. books and articles cautiously, holding caveats and During this fight, anti-Bork activists and qualifications in front of them like shields against commentators often pointed out that there had been social opprobrium. But the Chicago intellectuals politics in the process before. Some significant by whom Bork was influenced not only defended fraction of Supreme Court nominees, we kept the free market but defended it frontally. They hearing, had been rejected for political reasons wrote bluntly. They were not shy about debating over the course of American history. We were those with whom they disagreed. They were not supposed to conclude from this that the campaign apologetic. They did not act guilty. against Bork was a normal, and therefore legitimate, event. THE WAR AGAINST ROBERT H. BORK,19

It was a mark of the go. His speech raised climate surrounding what would become the the tight that people so major theme of the often quoted this campaign: that Bork disingenuous argument stood "outside the as if it were weighty mainstream of and telling. In fact, American there had never been constitutional anything remotely 'urisprudence.'It also resembling the scale made specific of the national media accusations: "Judge campaign that was Bork's America is a launched against Bork. land in which wom Nor was there ever would be forced into anything like the back-alley abortions, degree to which blacks would sit at constituency interest segregated lunch groups were organized counters, rogue police to put sustained could break down pressure on individual citizens' doors in midnight Senators. raids. . . and the doors of the federal courts HERE is much would be shut on millions that the public of citizens." Twill never These accusations know about the vere scurrilous, but the internal operations of scurrility was the great anti-Bork calculated: only campaign. Federal law language of this does not require any brutality, it was substantial disclosure thought, would arouse by the sorts of the fears necessary to organizations through get the relevant which the campaign's interest groups money flowed, and the moving. organizations Shortly after themselves are not delivering this speech, notably forthcoming Kennedy met with about their finances. Senator Joseph Biden, But we do know some chairman of the Senate things, because even Judiciary Committee before the final Senate and then still a vote, the anti-Bork presidential candidate. organizers started In the fall of 1986, celebrating their Biden had said that if victory in print. nothing were found Thus we learned amiss in Bork's from a story in the background, "I'd have October 11 Boston to vote for him." But Globe, based on after meeting with interviews with Kennedy and then with Senator Edward M. a delegation of civil- Kennedy and the rights activists, Biden liberal lobbyist decided that he Anthony Podesta, that was against Bork after soon after Justice all. Indeed, he declared Powell announced his even prior to the retirement from the hearings over which it Court, Ken-itedy's staff was his Job to preside had prepared the draft that he would lead the of a speech about fight against Bork. As Robert Bork. Then, for his 1986 statement, when Bork was named, Biden explained that he Kennedy was ready CO had meant only that he would vote for Bork to replace another the interest groups to conservative justice. organize. Therefore Since the highest priority, Powell was a they decided, was to "moderate," Bork was not make sure that there an a, .:cotable substitute. were no hearings on Iliden and Kennedy Bork's confirmation now met with two until after the Senate's other Democratic August recess. Senators—Howard M. Nevertheless, within Metzenbaum of Ohio days after this private and Alan Cranston of meeting, Biden California—to plan publicly pledged to the strategy. The first Washington Post that thing they had to do he "would not engage was buy time to in any tactics to delay launch a media the hearings." campaign and permit Taking advantage of the delay Biden had promised not to engineer, Kennedy worked the phones tirelessly, rousing organization heads by telling them that the Bork nomination was a major disaster for civil liberties and a major event in the lives of those who cared about such things. He also phoned the whole of the AFL-CIO executive committee and helped to persuade them that action against Bork was absolutely necessary. Early in July Benjamin Hooks, executive director of the NAACP, announced that his organization's coming conference would be focused on the single subject of defeating the Bork nomination. "We're trying to contact all the Senators—some once, some ten or twelve times," he said. At the convention, Hooks declared that he was working to get ocher civil-rights organizations to do the same. Around the same time, the convention of the National Education Association voted to join the fight against Bork. The National Abortion Rights pressure from outside Action League organizations could be announced that its mobilized. Finally, convention would word went out to the concentrate on the members of these Bork struggle. Eleanor organizations that Smeal, the president Robert Bork was a of the National monster, and that they Organization for must add their voices Women, said that to the pressure already NOW would organize being brought to bear rallies and establish on Senate telephone banks for deliberations. generating mail to key Senators. Later, in OT August, anti-Bork even activists from the Nall Alliance for Justice this would have been and the Federation of enough, however, Women Lawyers without reinforcement buttonholed attorneys from a media and held seminars on campaign of a scope Bork at the convention usually seen only in a of the American Bar nationwide political Association. race. The anti-Bork The direction in campaign used polling which these efforts and statistical analysis flowed is worth noting. to find out which First anti-Bork themes would affect activists—academics, people the most, association officials, which Senators were congressional staffers the most vulnerable. —de-cided what was and where advertising wrong with Bork. Then should be targeted. a key Senator, Guided by this adopting their ideas, research, anti-Bork launched the anti-Bork organizations bought campaign. Next, anti- full-pave Bork Senators got advertisements in together to delay the newspapers and ran processes of TV spots in major confirmation, so chat markets. 20/COMMENTARY JANUARY 1988

Different organizations put their names on The ad contained more such errors and lies, as different pieces of the effort. Planned Parenthood did the anti-Bork campaign as a whole. For the sponsored one big newspaper ad. The National record, the following charges made against Bork in Abortion Rights Action League ran another. But various ads were not true: that, according to Bork, talking about the media campaign against Bork women can be forced to choose between being means talking most of all about People for the sterilized and losing their jobs; that, according to American Way (PFAW). And talking about PFAW Bork, women have no "reproductive rights"; that means talking about its founder and leader, the Bork has voted with business in 96 percent of Hollywood producer Norman Lear. PFAW's "controversial cases" before him on the Court of operating style reflects Lear's correct perception, Appeals. back in 1982 when the organization was born, that All these and many other lies provided the fuel for the Left was in political trouble partly because the the mobilization campaign. Right had appropriated ail the symbols of patriotism. Lear aimed to get some of them back, NE of the major targets of this cam) and PFAW—from its red-white-and-blue logo on paign was the Southern Democrats in the down —pursues liberal goals by presenting them as Senate. In the past such Senators would established elements of the American consensus. osurely have been in the pro-Bork camp because The big anti-Bork TV commercial that PFAW of their relatively conservative views. But the ran was an example of this approach. The spot was anti-Bork strategists believed from their data- narrated by Gregory Peck, whose screen image is gathering that, this time, the minds of a number one of rectitude and whose voice we all trust. of Southern Democrats might be changed by the "There's a special feeling of awe people get," great persuader: electoral calculus. intones Peck in the commercial, "when they visit There were five new Southern Democrats in the Supreme Court of the United States, the the Senate. Some of them, went the argument, ultimate guardian of our liberties." As Peck had literally gained their seats because of their speaks, a traditional four-person nuclear family, winning margins in black areas. That is, if the with faces of a sort we have rarely seen since black-area votes were subtracted from the Leave It to Beaver, is walking up the Court steps. winners' total, the winning numbers became Father points the building out to the children. losing numbers. Peck goes on. Bork should not he on the Court, he The "black vote" argument was not so open and says: "He defended poll taxes and literacy tests, shut as lobbyists and commentators made it seem. which kept many Americans from voting. He The new Democratic Senators from the South had opposed the civil-rights law that ended 'whites indeed benefited from the black vote. But they had only' signs at lunch counters. He doesn't believe benefited from other electoral trends as well. John the Constitution protects your right to privacy. Morgan, who helped wage Republican Henson And he thinks freedom of speech does not apply to Moore's losing Senate campaign in Louisiana in literature and art and music." The commercial 1986. has pointed out that the Democratic winner, ends with the family in profile, gazing reverently John Breaux, is a Cajun. Breaux could not have at the Court. A gentle wind blows through their won over Moore just by winning black votes: he hair. The camera focuses lovingly on the cherubic won because he also gathered normally face of the youngest. The End. Republican votes from Cajun areas. In Alabama, IThis entire spot was composed of false Democrat Richard Shelby could not have defeated innuendoes and outright lies. For example, Bork Jeremiah Denton in 1986, black vote or no black never defended poll taxes or literacy tests. He vote, unless significant numbers of urban and said the Equal Protection Clause of the suburban whites had found Shelby an acceptable Constitution was the wrong rationale for the alternative to the eccentric Denton and defected Supreme Court to have used in striking down a from their normal Republican voting pattern. In 51.50 poll tax in Harper v. Virginia Board of Georgia, a good turnout among suburban Elections. He explicitly indicated that he was Republicans in the Atlanta area, instead of the able to reach his conclusion only because the poor turnout that actually occurred. would have case did not involve racial discrimination. He erased Wyche Fowler's victory margin over Mack also made it quite clear that he thought the tax Mattingly. And in North Carolina, Terry Sanford might well be unconstitutional on other grounds. benefited in 1986 from his opponent's loss of a To turn all this into a defense of poll taxes was Republican's normal share of conservative slander. "Jessecrats" (Jesse Helms, that is). The PFAW accusation on the subject of privacy None of this means that black voters were not was just as had. The truth is that Bork as an author important to these men. But before the anti-Bork has written and Bork as a judge has ruled that there campaign started, the situation did not seem so are indeed rights of privacy in the Constitu- predetermined. As late as the end of July, Ition. What he does not see in the Constitution is a administration vote counters were listing most of unitary and generalized right of privacy, as it the Southern Democrats as potentially pro-Bork. has been defined by Justice William 0. Douglas. At this point the "black vote" factor did not seem The PFAW ad deliberately and mendaciously to have irreversibly locked the Southerners up on confused this distinction. THE WAR AGAINST ROBERT H. BORK/2I the other side. But representatives of anti-Bork major right-wing campaigners had an organizations meeting interest in having the with the President's starkest version of the operatives were given "black vote" the clear message that argument believed, the they should keep a low version that would profile on the Bork leave each Senator the issue. least room for freedom Later, as the fight of choice. was nearing its Nationwide finish, bitter advertising thus stories started heavily emphasized circulating in the pro- the alleged threat to Bork camp about just minorities posed by why the the Bork nomination, administration had creating pressure on pulled its punches in Southern Senators this way when it was from black obvious that the Left organizations. The was launching a advertising also made massive assault. One pro-Bork voters such story was that uneasy and less likely Bork was seen by the to exert a contrary senior 'White House influence on their staff—most of whom Senators. had, to say the least. no enthusiasm for him— UT where was as a political liability, the counter- to be confirmed quietly Bpressure from or not at all. the Right? At first, Consequently, the spokesmen for story continued. when conservative the trouble started the organizations President's men did promised that their almost nothing to stop side would match Bork from twisting whatever the liberals slowly in the wind. did. Early newspaper It is certainly true stories on the liberals' that no senior organizing efforts White House always reported that official—except, the conservatives were sporadically, the organizing, too. This President him-self— was true: showed notable zest conservatives and their for the Bork fight. But organizations sent when Bork's managers plenty of pro-Bork waved the right wing mail to the Senate, away, they were also probably more than operating from a the other side did. deliberately "low key" Nevertheless, by the strategy for the time the hearings confirmation. began in September, The main charge no one pretended any made by the Left longer that the pro- against and anti-Bork sides Bork. as his political were evenly matched managers saw, was that in effort or pressure. he was "out of the The main reason the mainstream." One way conservative groups of viewing this "out of were the mainstream" not in evidence was charge was merely as a that early on, screen for the major battle the liberals were about to. wage. Instead, incendiary statements the managers took the from the Right. charge at :ace value. as Instead, they said, meaning what it said, their arena would be and they decided on a the Senate Judiciary strategy CO refute it. It Committee hearings, is too much to say that where fairness and they set out to reason could prevail. "repackage" Bork as a Their chief weapon "moderate" (though it would be Bork was indirectly himself. suggested to him that The tone of the he shave his beard). hearings, when they But they did set out to began, was indeed show that Bork was not different from the a monster or an atmosphere on the extremist. For this, the out- last thing they needed side. Chairman Biden was boasted that not a single witness requested by the Bork forces was refused permission to testify. The Senators heard digni- fied language from lawyers and eminent persons of all types. Absent was the interest-group frenzy that the media campaign displayed— and even more conspicuously absent were the anti-Bork interest groups themselves. Usually, on so controversial a matter as Bork, organizations and associations concerned with the issue actively try to get onto the witness list, so that they can have their moment of glory before the television cameras. A TV appearance gives them prestige, visibility, and an enhanced capacity to raise funds. But in this case anti-Bork organization leaders realized that testifying to the committee would be not so much an opportunity as a risk. These groups had said a lot of things about Bork. But if their leaders became witnesses, pro-Bork Senators would get to ask them questions. particular aims and The tables would be speak only in terms of turned. It was safe values enough ' that were consensual: to have a pro-Bork not abortion but Senator dueling "privacy," not verbally in the hearing "conservative" but room with an anti- "out of the Bork law professor. mainstream." It was The debate would be best not to testify. about ideas, and the pro- 'Tints self-effacing fessor could take care tactic left Bork as the of himself. But when undisputed center of an organization leader the hearings. His sat down to testify, White House other kinds managers' confidence of questions could in him on the eve of arise. What was the the hearings was not member- unreasonable. They ship of his group? saw quite correctly What were its general that Bork was a witty aims? What were its and genial man, views of abortion or wholly without the religion or intellectual rigidity crime control? Where that is the mark of a did its money come dangerous ideologue. from? How much They thought that money had it raised after a few days of and spent in the testimony by him, it campaign? What would be impossible activities had it for anyone to charge engaged in? in good faith that he In short, if these was extreme. groups went in to intemperate, or testify, pro-Bork eccentric. In this they Senators could make were right. Yet after them and their cam- the hearings, as the paign the issue. The Bork nomination Opole strategy of the floundered, the cam- organizations that had paign was to worked to bring him submerge talk of the down said over and interest groups' over again: "We 22/COMMENTARY JANUARY 1988 didn't defeat Judge would have liked. Bork. Judge Bork Partly, no doubt, this defeated Judge Bork." was the result of a Conservatives had a deliberate decision on different lament about his part. What is also the hearings: Bork had true is that Bork clearly been made to sound too does not have moderate, and he had unqualified views about therefore failed to rouse some of the subjects to action the people that conservatives who were his natural wished he would tackle. supporters. Moreover, Bork was Both charges were and is a sitting federal false. In the hearings judge. His tone was Bork did just about all bounded by the that he could have done traditional standards of on behalf of his own the profession. He nomination. sounded—judicious. His testimony lasted Those who had hoped for four days of usually that Bork would inspire hostile questions. The people in something pressure of the situation like the way Oliver was enormous and North had done in the deliberate. Bork's Iran-contra hearings opponents were hoping overlooked the fact that that he would crack— Bork simply did not that he would admit to have the personal some scandalous equipment for the job. behavior in his past, But even if he had Eor instance, or that he possessed this would say something equipment, it would intemperate enough to have been wholly sink him. But they did inappropriate for him to not succeed in driving talk Iike an enthusiast him into any specific for one political misstep that they could perspective or another. use against him. This Bork was nothing if not was extraordinary, forthcoming in the given the length and hearings. He answered intensity of the types of questions that questioning. Moreover, judicial candidates had Bork set a general tone never consented to in his testimony that answer before. But to was uniformly high, make an impact through civil, and—irrelevant TV that might have though it came to seem offset the force of the —learned. campaign against him But if the hearings would have required were to have overcome behavior that Bork the force of the anti- could not and should Bork campaign outside not have engaged in. the hearing room, it was The hearings had necessary for Bork to their high-toned make large numbers of moments and their low Americans feel an ones. When Senator emotional connection to Kennedy was on, he him, one strong enough would typically read a so that they would hostile question off a speak up about it and sheet that his staff had move their Senators. prepared for him. Bork This Bork did not do. would parry. There He did not sound as would be a brief blunt as many silence. Then, instead conservative activists of responding to Bork or pressing him further, one patch of the Kennedy would rush questioning, Biden kept along to the next passing Kennedy a prepared query as if he Kennedy-Bork could not understand scorecard. "12-0," it Bork's answer. read, then "18-0," then Bork's supporters "24-0," then "30-0 if he laughed at this, but keeps on." Both during Kennedy and Biden knew that the point of the hearings was not to have a debate or to get any real answers to real questions. The point was to go through the forms of the process while making sure above all to preserve the air of controversy surrounding the nominee.

t-tz majority report that the TSenate Judiciary Committee finally produced on the hearings showed unmistakably that this had been the intent behind the proceedings. The report dealt with Bork's views on various subjects —privacy, executive power, judicial restraint, civil rights, antitrust, women's rights, and the like—and found them unacceptable in each category. There are respectable arguments to be made for views other than Bork's on all these topics. But the majority report almost never offers them, since its aim is not to debate Bork in good faith but to make the inherently dishonest case that Bork is outside the American mainstream. In the section on privacy, for instance, the majority calls Bork an extremist for disagreeing with Justice Douglas's concept of privacy in Griswold v. Connecticut. The report gives no sense of the fact that there are prominent scholars on both sides of a vigorous debate over this issue. was at the heart of- the More interesting, the anti-Bork campaign— section makes its whole that is, abortion_ It is case on the subject of impossible to think that privacy without this central but discussing the issue that controversial question for many organizations was omitted by accident. THE WAR AGAINST ROBERT H. BORK/23 campaign. The truth he made the surprise is that "people," by announcement that he and large, did not see would not withdraw. Here Bork testify at all. are some of the things The networks they found: The press televised almost none quoted twice as many of the hearings, and opponents of Bork as not even all public- supporters, and nearly television stations two-thirds of the ran them. The vast judgments they cited were majority of negative. Among legal Americans never saw scholars quoted on Bork, any nearly three-quarters said · ubstantial part negative things. The of the hearings while sources split evenly on his they were Ca k in g abilities, but 82 percent of place. those who talked about his Instead. what most philosophy criticized it. people saw of Bork in Even more important, the hearings was what coverage became sharply the networks and more negative over time, public television especially on television chose to present on news programs. Before the the nightly news. The hearings, assessments of usual rules of Bork by leading news broadcasting applied. organizations were The excerpts taken balanced more or less out of the testimony evenly. But the figure was were tiny snippets of only 38-percent positive the larger give-and- during the hearings and take. Viewers rarely dropped to 28 percent got to see answers of afterward. After the any length or hearings, not a single complexity. Sentences positive judgment of Bork were selected for was broadcast by TV presentation news. according to what t Thus most people got program's producers their information not from judged to be the the hearings but from essence of Bork's news sources whose bias philosophy or the in this instance was day's important trend. clearly more than A demagogic question accidental. Yet journalists and a thoughtful simply repeated the line answer were likely to that it was Bork who had show up on the killed his candidacy in he evening news—and, hearings. "Bork Was His less defensibly, in the Own Worst Enemy," , n a print media—as, particularly explicit "judge Bork today headline at the end of denied the October in the Washington charge. . . ." Post. The circle of But even beyond Influence was complete. the limitations of the medium, press L6irrER the hearings, a treatment of Bork was number of Senators who extraordinarily had decided to vote 'lopsided. S. Robert against Bork started and Linda Lichter's coming forward at Media Monitor conveniently dra-!limit: followed press intervals to announce coverage of Bork their intentions. To the from his nomination press, the anti-Bork on July I until the day momentum seemed irresistible. So these announcements were aides were prominently featured privately in the news, and the conceding defeat. momentum increased. President Reagan Soon the journalists was saying, kiss- had ocher predictable of-death style, elements of the story that it was up to to report: top White Bork to decide House whether or not he wanted to withdraw. Friends were trying to persuade Bork to back out, on the ground that forcing an actual vote in the Senate would only be a personal embarrassment and give more publicity to his defeat. It was said, falsely, that Bork's wife and family were begging him to quit. Finally, in anticipation of his imminent withdrawal, the press even mounted a "death watch," staking out Bork's home so that he could not come or go without their notice. But almost all the Washington insiders had underestimated Bork's strength and that of his family. Furthermore, by this point Bork's enemies had managed to vilify him so much that they could do his reputation no further harm even if he decided to fight on to the end. The idea of staying in the contest became thinkable. Staying in, when everyone knew it was so much easier to quit, would make it clear that Bork was uphold- 1/ i /U1 ing the principle that the Senate During the must be period between accountable for that day and the this most important final vote on of actions. Indeed, October 2, , a some in the federal group consisting judiciary urged largely of Bork to take the principled route attorneys, acting and finish the from a fight, because they combination of were appalled at admiration for what the anti-Bork Bork and anger at cam- v 161, 4 , paign the nature of the was doing to the campaign against judicial selection him, launched a process in general. last-ditch effort. On Friday, They had several October 9, goals in mind: to Bark went to save the Bork the White nomination if House—CO possible, to save withdraw, the Bork's reputation press was in any case, and certain. But to expose what then came had been done to one of the him and to the few federal judiciary. unplanned Leonard moments of Garment, a the whole Washington affair. Bork lawyer, was one asked the of the leaders President (and I myself whether he joined him in the would get effort). Another support from was a New York the \Vhite attorney, Michael House if he Armstrong, like stayed in the Garment the head fight. The of one of the President, professional promising committees that what he exist in many could not states to make deliver, said recommendations yes. On the on the selection basis of of federal judges. Reagan's In a parallel answer Bork effort, walked into conservative the White groups like the House press American room and Conservative said he was Union and the staying. For Free Congress once, the Foundation, journalists which had been gathered in working with the press little room were administration truly encouragement, surprised by produced final something mailings and that advertising. happened The there. Washington-New York effort aimed at persuading the anti-Bork Senators that campaign had 24/COMMENTARY JANUARY 1988 been so dirty and full of false information as to testified, warned Greene, he would be exposed to have seriously misled them. Because of this, went the embarrassment of this controversy once again. the argument, Senators should not commit Baker phoned the White House and canceled his themselves to voting one way or another on the appearance. Bork nomination until they had heard a full debate Although Greene insisted that she had acted out on the Senator floor. Newspaper ads were placed of no motive but sisterly love, her exchange with to demonstrate that the campaign had been Baker was, on the face of it, intimidation of a deceptive and a threat to the independence of the witness, and the story probably did succeed in federal judiciary. Visual aids were prepared for raising some doubts about the legitimacy of the those Senators, such as Judiciary Committee anti-Bork campaign. Nevertheless the last-ditch members Orrin Hatch and Alan Simpson, who had effort failed. This was not surprising; the attempt supported Bork staunchly and were going to lead was a long shot in the first place. If there was to the pro-Bork side of the debate. A team of have been any chance of switching a vote or two to attorneys in New York drafted detailed replies to "undecided" and reopening the fight, it was each section of the Judiciary Committee's majority necessary that everyone think the pro-Bork forces report, in an attempt to show that the report was were playing to win. This condition was never so intellectually dishonest and of such low quality met. The White House explicitly refused to en- that it was itself a scandal in the history of tertain—even as a tactic—the possibility of Supreme Court nominations. (Because the debate reversing the trend against Bork. Named and was cut short, only three of the ten replies were unnamed White House sources kept emphasizing delivered to the Senate before the vote.) to reporters that the Bork. battle was lost. Senate Minority Leader Robert Dole did the same. When H i s l a s t - d i t c h e f fo r t g o t a b o o s t f ro m th e Vice President George Bush began making spirited 1.e me r g e n c e o f t h e s t o r y o f Jo h n T . pro-Bork speeches, he was stopped. The Justice Baker. Baker was a professor at the law school of Department provided generous tactical help but the University of Oregon and a former dean of the did not want the campaign to go beyond a set of law school of Howard University. He had been narrow bounds. scheduled to testify in favor of Bork. Baker was a There were respects in which the final pro-Bork black who, because of his former position at effort was easier than anticipated. Volunteers Howard, could not be dismissed as someone cut off turned out to be available. Money, contrary to from the black community. His appearance might earlier predictions by Bork's White House have been of significant help to Bork's case. But at managers, was available as well. Outside groups, the last minute, Baker changed his mind and far. from being standoffish, as they had earlier backed out. been described, were willing to help. The After the hearings, Baker told friends that he substantive case was even stronger than had been had changed his mind about testifying because anticipated. But all these factors were as nothing he "couldn't take the heat." Just before he was against the determination—on the part of those scheduled to testify, he said, he had received a who were tired, who wanted to avoid further call from a woman lie had known for some time. confrontation, who worried about the next battle, Linda Greene. She was black, a lawyer, and a or who had developed a psychological or Metzenbaum appointee on the majority staff of ideological stake in failure—that the fight be over. the Senate Judiciary Committee. She told Baker In the week of the final debate, 23 judges of the that if he appeared before the committee, he was Second Circuit, the country's most prestigious, going to be humiliated. She already knew the signed a petition deploring the nature of the questions the staff had prepared, and they had campaign that had been waged against Bork. little to do with Baker's views about Bork. Whatever one's views of the nominee, the petition Instead, they were questions about Baker's own was an event that should have been of major ability and character. interest to any journalist purporting to be The majority was going to charge Baker, before concerned or knowledgeable about the American the TV cameras, with being unqualified to talk judiciary. To have so many judges putting their about the constitutional issues that formed the names to a public-policy document of this sort was crux of the Bork debate. What is more, the highly unusual in the history of the federal courts majority was going to dredge up the story of why and a clearly significant result of the Bork affair. Baker had left the deanship of Howard Law But the reporter for the New York Times had to be School. Baker had resigned from this post badgered into even mentioning the event at the publicly charging that the university's very end of a long story on the confirmation fight. administration would not permit him to establish Norman Lear's campaign in the South had shaped and enforce the professional standards that were Bork's fate, but it was attitudes like this that necessary if Howard was to have a respectable sealed it. law school. Some days later, the president of Howard, James °"'s opponents said over and over that Cheek, charged that Baker had really left because Reagan himself had been the one to Cheek would not give in to his extortionate Bpoliticize the process, by calling for law- demands for increased salary and benefits. If and-order Baker THE WAR AGAINST ROBERT H. BORK,25

judges in his Harrold political Carswell speeches. Yet (nominat the Reagan ed by

a dministration Richard , though it Nixon). certainly did There appeal in had been 1 4 1 1 - i t s c a m p a i g n s t o politics p o p u l a r f r u s t r a t i o n in that w i t h " s o f t " rejection, j u d g e s , a c c e p t e d but c o n v e n t i o n a l opponent c o n s t r a i n t s w h e n t i m e s had also a c t u a l l y c a m e t o n a m e argued p e o p l e t o t h e h e n c h . successfu I n d e e d , t h e b i g f i g h t lly that o v e r t h e p r o p r i e t y o f Carswell t h e a d m i n i s t r a t i o n ' s presented j u d i c i a l s e l e c t i o n a serious p r o c e s s h a d b e e n problem a b o u t w h e t h e r J u s t i c e of D e p a r t m e n t competen q u e s t i o n e r s s h o u l d b e ce. A a l l o w e d t o a s k little p r o s p e c t i v e n o m i n e e s earlier h o w t h e y f e l t a b o u t there had R o e v . W a d e . T h i s been q u e s t i o n i s a s n o t h i n g Clement c o m p a r e d w i t h a l l t h e Haynswo t h i n g s t h a t w e r e rth, also a s k e d b y t h e nominate J u d i c i a r y C o m m i t t e e d by o f R o b e r t B o r k . Nixon, Bork's whose pursuers also rejection kept insisting was also that rejecting politicall Court y nominees for motivated political . But reasons was as opponent American as s apple pie. It is managed possible that to some of them discover believed this. a conflict Yet in recent of times, the interest rejections we in Hayns• call "political" worth's have been performa hung on some nce on nonpolitical the peg. When bench. Bork's name Similarly went to the with the Senate, that rejection body had not of rejected a Supreme nominee for Court seventeen Associate years—not Justice since G. Abe Forms, nonpoliti nominated by cal Lyndon reason Johnson to be for Chief Justice. opposing In that case, him, they which anti- acknowle Bork partisans dge that cited as a the justification confirmat for their ion campaign. process opponents should could and did take point to the place free issue of of the Fortas's interventi participation on of in politics partisan while on politics. the !)ench, the As long problem of as they lecture fees make this paid to him acknowle out of dgment, earmarked they funds accept collected from very businessmen, definite and his refusal limits on to go before the sorts the Judiciary of Committee political and answer argument questions s they about these can use matters. and the There was kinds of more at work political here than pressure hypocrisy. As they can long as an 3PPIY. administration To be feels sure, compelled to Bork's pay obeisance opponent to nonpolitical s tried standards like very hard character and o hnd a competence, conventi there are onal limits to the "hook" types of on which to hang people it can him. pick as They judges_ tried to Political disinter congeniality the cannot be the Watergat only criterion. e episode As long as the known as Senate the opponents of a "Saturda Supreme Court y night nominee feel massacre. compelled to " in find a which then-Solicitor ardson and Deputy General Attorney General Robert Bork William staved on to Ruckelshaus. become Witnesses were Acting produced from Nix- Attorney on's Department of General after Justice who testified President to the Judiciary Nixon had Committee that Bork fired Attorney had been General Elliot insufficiently Rich- zealous in finding a new special prosecutor to replace the recently dismissed Archibald Cox. The charge was false, and the evidence to disprove it was available to the committee. Elliot Richardson and Archibald Cox themselves had said publicly that Bork had acted in a wholly honorable fashion. This did not prevent the committee from staging its Watergate show. But it did keep the Watergate charge from being very useful as a tool against Bork. The opponents also surfaced allegations that Bork was a tax delinquent, that he was a drunk, and that he had deceived a fellow judge in the writing of an opinion. From the Hill came rumors that Bork's wife Mary Ellen did not believe that the Holocaust had ever occurred. But nothing took. There was no scandal. During the course of the hearings, Chairman Biden admitted aloud that there simply was no significant blot on Bork's integrity. But—and here is where one of the crucial lines was crossed—the opponents would not os-r of the scandals stop. They went ahead to that the opponents discovered in Bork's oppose Bork on purely views were sheer inventions. Even the ideological grounds_ scandals they claimed to have They did not do this discovered in his early writings, honestly, by saying that before his career as a judge started, were they hated Bork's ideas. not genuine. One of their best-known Failing a scandal of the examples was a 1963 New Republic usual sort, they decided article in which Bork had called the to present Bork's principle of the pending Civil Rights philosophy as itself a Act of 1964 one of "unsurpassed scandal. When they said ugliness." In citing this, the anti-Bork he was no true forces meant, of course, to show that conservative, or that he Bork had opposed the idea behind one was extreme and outside of the most basic of civil-rights the mainstream, they documents. Here they were guilty of were saying that Bork's yet another misrepresentation. were not the sort of ideas In his :Vew Republic article that should be met Bork had quoted Mark deWolf Howe through the normal give- condemning segregation as one and-take of serious of the "ugly customs of a stubborn argument. They were people." Bork agreed: there could saying that Bork's views be no doubt about the "ugliness of were beyond the pale, racial discrimination." But that they were threats to he wor- the American system and should be treated as such rather than listened to with seriousness or respect. If the opponents had only said that Bork's ideas were wrong, they would have had to muster sustained arguments against them. But if his ideas were scandalous, therk their mere existence was enough to disqualify him from the Court. M 26/COMMENTARY JANUARY 1988 ried that parts even if they of the mentioned pending act that he had could turn disavowed his into another earlier view, sort of accorded it unnecessary the same coercion, and weight as if it was this he were still that Bork committed to called a it. principle of At present "unsurpassed Bork is an ugliness"— appeals court using the judge of particular acknowledged word prudence. For "ugliness," of years, though, course, as an he was a echo of writer and a Howe. law professor. Though His obligation Bork was during those overstating years was not for literary to behave with effect, the maximum reality here prudence. was simply Quite the not contrary. His scandalous, duty was to especially in follow his light of the ideas where fact that, as they took him, the New to spin out the Republic's implications liberal editors with honesty said in the and same issue, imagination, many of its and then to readers shared apply the Bork's worry. same honesty But there was in admitting something mistakes when more further important for argument and the present evidence case: Bork required him repudiated his to do so. 1963 view, As publicly, everyone fourteen years recognizes, ago. Bork took Throughout these the campaign obligations against his seriously— nomination, that is, he Bork's spoke opponents, honestly, assumed that its way as his anything that intellectual ever came out adversaries of the made their fundamentalis own t Right of the arguments in 20's. good faith, The anti- and readily Bork forces admitted he would not was wrong have been when so able to make persuaded. their anti- Yet it was on intellectual the basis of appeal these qualities decisive, that Bork's though, were opponents on it not for the the Left other line that declared him they decided unfit for the to cross: the highest line between judicial the insider office. In politics of doing so they judicial attacked the selection and entire process the by which constituency intellectual politics of a life does and national should go on. political The irony campaign. No here is large. matter how For a long fierce the time now politicking on liberals in the inside has America have been in the denounced selection of conservatives federal for anti- judges, and it intellectualis has m and have sometimes represented been fierce themselves indeed. the and the Bork institutions campaign was they control, different. like Those who universities claimed that and the the media courts, as the aspect of the preservers campaign and defenders meant little, of intellect. and that the In the Bork campaign they acted with a contempt for intellect at least as bad in important The decisions answer, were made which by the Americans Senate, were should not being either have to have ignorant or repeated for disingenuou them, is that s. under the The system achievement designed by of the anti- the Bork Founders, campaign judges are was, first, to not supposed use the to be chosen media to by popular activate election. outside This does not pressure mean that groups on a judges are to large scale. be fully Second, the insulated campaign from managed to democratic bring this pressures. force to bear After all, on Senators they are to who then be selected reached their by the decisions on President, the basis of with the factors that advice and had never consent of influenced the Senate. them so But the powerfully insulation before. must be But, as substantial. Norman Lear According to has replied the to his critics Founders, on this issue, judges what is should not wrong with live in fear that? Should of losing we not be their proud CO positions for see the making American decisions people that yield the making clear "wrong" what they results from will and will the point of not stand for view of one on the or another Supreme pressure Court? Is group. this not We have at democracy various in action? times been more or less that the respectful of American this electorate principle, had won but there can their fight be no doubt for them. that it has But the been at the activists of base of the Left did whatever not accept success we defeat and have skulk off enjoyed as a into a society helpless under law. It silence. is the failure They pulled to show the in their slightest bit horns, of care or solidified respect for their bases this truth in liberal that makes organization Lear-type s, waited for talk about the "democracy" appropriate a national target, then menace. ran up the hill with a T vast war WILLtake whoop. Iyears to They were undo the delivering a damage that message: the war that the Left against Bork is no more has tolerant than wreaked. if it was indeed the twenty years harm can be ago of ideas undone at to the right all. There of its own, was a sense, and that its though, in deepest which those hatred is on Bork's reserved for side of the public case also figures who incurred a champion substantial those share of the despised blame. Since ideas with the 1980 genuine election, intellectual many skill. We are conservative going to s have have another tended to twenty years bask of complacentl ideological y in the strife in which to false sense remember the lesson. 6/COMMENTARY MAY 1988 ministration's multiple-point basing al opinions are derived, directly or the Constitution from the compro. system, deserves at least part of the indirectly, from his conviction that wises of the Constitution. Thus he is blame.) the Constitution ought to be compelled to speak of the Consti. No doubt there are many reasons interpreted in the light of the tution's "wholesome inconsisten. why officials of this government may "original intent" of the Framers of cies." But the greatest of all incon- be pursuing START. But one hopes that document. But Judge Bork has istencies in the original Constitu- to heaven that this risky and ill- never interpreted the intentions of tion concerns slavery. And however advised effort is not being those who framed and those who nececsary the compromise with undertaken in the absurd hope that ratified the Constitution in the slavery might have been, it hardly an agreement slashing strategic light of the doctrines to which they deserves to be called "wholesome." arsenals by 50 percent will stiffen themselves subscribed. This Bork's conception of "original congressional resolve to spend more misunderstanding of "original intent" is an invention of contempo. for our national defense. This is intent"—not only by Judge Bork, rary conservative jurisprudence. Alice-in-Wonderland political logic, but by Chief Justice Rehnquist and Although it speaks constantly of his. unworthy of the principal author of Attorney General Meese—I have tory, it rejects the ideas of natural NSC-68. documented in "What Were the rights and of natural law which were Let me dose with a suggestion: let 'Original Intentions' of the the historic foundation of the the administration begin to Framers of the Constitution of the historic Constitution. Judge Bork's publicize on Capitol Hill and among United States?" (published in the lengthy testimony gave rise to a the public at large the newly Spring 1987 issue of the University widespread feeling—one that did not acknowledged fact that the START of Puget Sound Law Review but arise only from the propaganda of agreement will not save the written before Judge Bork's his antagonists—that his was a American taxpayer a dime, that nomination). desiccated scholasticism, that had indeed it will cost money and in all In 1825, Thomas Jefferson little in common with that likelihood make our defense effort consulted James Madison on the passionate commitment to human on the whole more expensive. Let question of what books and freedom —under "the laws of the administration begin to spell documents ought to be considered nature and of nature's God"—that out in detail for Congress the costly authoritative for the teaching of is the true legacy of our Revolution. changes to our forces and the new law at the new University of HARRY V. weapons systems that must be Virginia. Madison recommended as JAFFA Claremont, California deployed to recapture what the first of the "best guides" to "the amounts to a diminished level of distinctive principles" of the To THE EDITOR OF strategic stability under START. COMMENTARY: In vilifying the governments, both of Virginia and opponents of Robert H. Bork for allegedly Let it do this without even going of the United States, "The into the serious problems of vili Declaration of Independence, as the fying Bork, Suzanne Garment says verifying the agreement or fundamental act of Union of these almost nothing about Judge Bork's enforcing compliance when Soviet States." ... own views on the issues. .. . It may violations are discovered. Then we Bork's many writings do not therefore be useful to set forth some shall see, even more clearly than we display the slightest awareness that of these in his own words. do today, whence the real pressure the principles of the Constitution are On free speech: as late as June for an agreement is coming— to be found in the Declaration of 1987, he declared that he did not whether from Capitol Hill, as Independence—or in any of the other think "courts ought to throw Ambassador Nitze implies, or, as documents of the Founding which protection around" art and seems more obvious, from the express the same philosophical literature. Ever since 1971, he has White House and the Department of ground for constitutional insisted that the Constitution State. jurisprudence.... protects only speech related to "the That the administration can offer Bork has written that "judges way we govern ourselves"; his no better justification for its policies have no mandate to govern in the\ liberal views on libel in political at this late hour I find almost a little name of contractarian or utilitarian matters are related to that exclusive surprising. At any rate, the or what-have-you philosophy rather concern with po-li tical speech. intellectual and strategic than according to the historical On equality: in June 1987, he bankruptcy of this approach to our Constitution." But the historical declared. "I do think the equal- security should be plain. Constitution was based upon a protection clause probably should particular version of "contractarian have been kept to things like race Bork & His Enemies philosophy." For that we have the and ethnicity," excluding women authority of no one less than James and others. To THE EDITOR OF COMMENTARY: Madison, who wrote repeatedly On privacy: even at the I agree with what Suzanne "that all power in just and free confirmation hearing, where he Garment writes in her article, "The governments is derived from experienced several "confirmation War Against Robert H. Bork" compact. . . ." And John Adams, in conversions," he insisted that there [January], about the scurrility and the Massachusetts Bill of Rights, was no principled way to justify the ruthlessness of the campaign against wrote that "The body politic is . . . a 1965 decision striking down the laws Judge Bork, and I too supported his social compact by which the whole against the use of contraceptive nomination to the Supreme Court. people covenants with each citizen devices. Other targets of his Nevertheless, it was not only the and each citizen with the whole criticism of privacy law include the malice of his enemies that defeated people that all shall be governed by 1925 decision establishing a parent's Judge Bork. There were serious certain laws for the common right to send a child to a private defects in his jurisprudence that also good...." school as well. of course. as the contributed to the result. Bork's "originalism" is morally abortion decision.... All of Judge Bork's constitution stultifying, in that it does not allow him to distinguish the principles of 8/COMMENTARY MAY 1988

Alth his John ough views Stennis Bork of who is may what not not the runnin persona Consti g for lly like tution reelecti poll requir on, or taxes es or a and permi retirin literacy ts, not g tests what Republ . . as he ican the would like Wall appro Robert Street ve Staffor Journa were d, both l has he a of pointed legisla whom out, tor. It voted "had is his against he been view Bork. a of the Lose Supre Consti rs are me tution entitled Court that to sulk, Justice the not to in the nation distort 1960's, repudi history. he ated. H would And ERMA almost not N certain just SCHW ly have becau ARTZ upheld se of The these media America laws." . campa n .. igns. Universit The The y fact "natio Washi is nwide ngton, that advert D.C. whet ising .. her . To THE Bork creati EDITO likes ng R OF literacy pressu COMM tests, re on ENTA poll South RY: taxes, ern In contrac Senat her eption, ors piece or from on the abortio black defeat n law is organi of the irrelev zation Bork ant. He s," as nomin was Mrs. ation, being Garm Suzann conside ent e red for descri Garme a seat bes it, nt on the could sprays Supre hardly accusa me have tions Court, affecte all where d a over he conser the would vative place. . apply like . . Since Garm Senato Mrs. ent is rs as at Garme wrong odds nt was on all with herself counts our an . The history active fight and partici over traditi pant in Rober ons the t H. and as hard- Bork's a fought confir threat battle matio to over n was liberty the a fair . Far nomina fight from tion, and mislea there is he lost ding a it in the temptat every public, ion arena the simply in proces to avert which s one's it was provid eyes contes ed an and ted— extrao ignore amon rdinar her g legal y public schola learnin tantru rs, g m. But amon experi Mrs. g the ence Garme Ameri for all nt's can of us piece is people part of , and a in the concert Senate ed itself. effort, Judge now Bork's joined nomin by the ation former was nomine defeat e ed not himself for , to hidde rewrite n or history in an conspi attempt ratori to al influen reason ce the s, but course becau of se his future dearly Court articu nomina lated tions. views As such of the it Consti warran tution ts a and respons the e. role of As the the courts evidenc were e viewe demons d by a trates, major Mrs. ity of about allowi Garme the ng nt has meanin consti turned g of the tuenc matter Constit y s ution politic comple and, in s to tely on the end, intrud their was an e on head. affirma the In tion of selecti perfor the on ming historic proces its role of s is constit the that utional Suprem judges duty to e Court "are advise in not and protecti suppo consent ng our sed to to fundam be judicial ental chose nomina rights n by tions, and popul the liberties ar Senate . electio affords 1. n" citizens Mrs. and the Garme shoul only nt's d not chance first "live they major in have to charge fear assess a is that of nomine the losing e's process their fitness of positi for judicial ons office. selectio for The n was makin process corrupt g is by ed decisi no becaus ons means e that the Bork's yield equival oppone the ent of a nts 'wron popula decided g' r to cross result electio "the s...." n line Of becaus betwee course e the n the judges great inside should majorit politics not be y of of vulner conscie judicial able to ntious selectio retalia Senato n and tion rs' in the for the constit their Bork uency decisio deliber politics ns. ations, of a That as on nationa is the other l essenc nomina politica e of an tions, l indepe weighe campai ndent d gn." . . judicia argum . The ry. ents, danger But not of Mrs. telegra ms. As Reaga at his one n's hearin observe 1984 g. r has and Perh noted, 1986 aps if a campa recogni nomine ign zing e appeal the satisfies s for flaw in the the her people's electio argum represe n of ent, ntatives Repub Mrs. in the licans Garme confirm on nt ation groun wheels process, ds out her he will that fallbac never they k have to would positio answer ensure n: the to them the proble again. confir m was So Mrs. matio not so Garme n of much nt's judges that notion who Senato of would rs judges carry heeded living out their "in fear the constit of Reaga uents losing n as that their social they position agend did not s" a. Nor properl makes does y no she unders sense. seem tand Mrs. distur Garme bed by nt the evident Reaga ly has n little pitch faith in for her citizen own s to argume pressu nt since re she their does Senato not rs to follow vote it for consiste Bork ntly. In becaus her e he haste to was condem "toug n h on politici crime, zation " a by charac those terizat who ion oppose that d Bork, Bork she had voices the no good criticis grace m of to Ronald reject the vote. ent's politics Accor melod of their ding rama own to there states. Mrs. are & she many suggest Gar. s that ment's villain the logic, s .. . signific if but she ance 0; popula the r will reserv is in. es a black deed a special vote in legitim place the ate in her 1986 factor rogues Senate in the ' election con. galler s in the firmad y for South on People was proces for the inflatee s, Ameri because Southe can the rn Way anti- and its civil- Senato rs found rights er, incur°. (who bent in voted Norm agains an Georgi Lear. a might t Bork 16-6I In have Mrs. won it should have Garm only ent's white realize Republi d that accou cans in the nt, the the At. 1986 televis lanta electio ion ad area ns produ had were ced by gotten an People themsel anoma for the Ameri ves to ly--thz the the can polls. racial War So, too, politic and in s of a narrat North Jesse ed by Grego car°. Helms lina are ry Mrs. Peck the was Garme "norm nt "comp al" osed asserts conditi that of on of false Sen. the innue ator South. Terry ndoes Now and Sanford that 's outrig truly ht opponen may lies." t be a In would princi have this ple of charge won if "unsu he had as in rpasse so gotten a d many "Repub ugline lican's others ss.' Mrs. normal 2. share" Garm In ent is of the Mrs. Helms simply Garm wrong on her to why facts. disco. black She franc citizen says, hise s b. for black 1964 exampl citize challen e. that, ns. ged contra When the ry to olt poll the device tax ad's failed, form assern state of oo. legisla econo Bork tures mic never came discrin defend 1102ult ed poll up with that taxes violate or another d the literac Furtee y tests, variation. n:. but Amend merely Theylie ment suggest and ed that d on the why the Congr Supre slow ess me 1965 outlaw Court process of in the ed the poll- use of tax dm ltuniu_ case courts ., tests could , and in have the Southe struck need rn the az for states pro o th down racial ` ou "on discri d other minati q ground on in u s," each ic presen ant. rr ably t* And ii proof when n of it racial came mi discri right n mmatu down g m The to it ca fact is states a that were st over willin ie the g to o- course user b more pdt tax to n. than y half a disenf ranchi - centur c y, se poo whal a Southa citizen ll states s s if e had that used were p both the ii poll ctst et. taxes keepin r mt g o literac blacks o y tests off the f as rolls. o devices Tha t is f LETTERS FROM READERS/9

So Mrs. the nation applied to Garment one way segregatio begs the or n. But question another," Bork's when she certainly meaning suggests raised was that Bork legitimate crystal was only questions clear when quibbling both he wrote, about the about his even as rationale sensitivity 200,000 and not and people the result. accuracy. were In fact, he Similarl gathering challenge y, Mrs. to hear d the Garment Martin authority is wrong Luther of the in King's "I supreme charging Have a Court (in that Dream" the case of People for speech, that poll taxes) the and American barring Congress Way and racial (in the others segregatio case of were n in literacy "guilty• restaurants tests) to of yet and hotels take the another and only misrepres theaters effective entation" was, for attic— in citing proprietors that were Bork's who available statement practiced to them to s that the such enfranchis 1963 discrimina e black civil- tion, "a citizens. rights bill loss in a Neither barring vital area People for racial of the discrimin personal American ation in liberty" Way nor public and a form any other accommo of Bork dations coercion opponents was based that "is that we on a itself a know of principle principle ever of of charged "unsurpas unsurpasse that Bork sed d favored ugliness." ugliness." poll taxes, Aparendy Whether although the the phrase his 1973 "misrepre was statement sentation" borrowed that the lies in the from Virginia failure to Howe or poll tax point out was Bork's "was a that in own, the very small using the meaning poll tax, it phrase was the was not "unsurpas same. discrimina sed Presumabl tory, and I ugliness," y Bork doubt that Bork was borrowed it had borrowing the much words quotation impact on that Mark because he the deWolf deemed it welfare of Howe had apt. Mrs. The could find Garment statement no basis in continues in the ad the her string was based Constituti of errors on a 1971 on for when she Bork striking says that article down the People saying Connectic for the that the ut's anti- American desire of birth- Way ad a control was "just "husband law. His as bad" in and wife reassuranc its to have es that the statement sexual Fourth that Bork relations Amendme "doesn't without nt protects believe unwanted privacy by the children" guarding Constituti was against on indistingu unreasona protects ishable ble your right for searches to constituti and privacy." onal seizures Mrs. purposes would Garment from the provide no contends desire of help to the that Bork an Connectic does electric- ut couple believe in utility or to those a right to company asserting privacy to "void a similar but not smoke- daims. the pollution Contrary "generaliz ordinance to Mrs. ed" one ," and in a Garment's that 1982 allegations, Justice speech People for Douglas that "the the articulated result in American In the the Way's Griswold Griswold television case. the case and print 1965 could not ads were decision have been only a in which reached small part the by of the Supreme interpreta detailed Court tion of research, struck the costing a down a Constituti fraction of Connectic on." At what she ut law his asserted. making it Legal a crime hearing, Bork tried analysis for and public- anyone. for a while to informatio even n efforts married soften these engaged in couples, by People to use views by suggestin for the birth American control. g that rights to Way and privacy other civil- might rights, indeed be civil- found liberties, elsewhere religious, in the and civic Constituti organizatio on. But in ns were at the end he the core of the surprise to battle was campaign.. those who really over .. know the control of But Yale Law the heart even if the School of and soul ads are Eugene of taken in Rostow, American isolation Ralph law from all Winter, schools else, they the late misses the require no Joseph W. point of apology. Bishop, the entire The hurt Jr., and process. they the late Perhaps to caused Alexander her mind, was the M. the sting that Bickel. ideologica the truth among l and sometimes others. personal inflicts. Her struggles 3. suggestio that take Perhaps n that place in the most there is a universitie bizarre "liberal s, or, for notion of monopoly that all is Mrs. over the matter, in Garment's great the assertion academic boardroom that the institution s of real basis s" ignores corporatio of the ns or opposition predomin newspaper to Bork ance of s, are the was not a conservati most fundamen ve scholars important tal at the and disagreem University exciting ent over of things. constitutio Chicago But she nal Law trivializes principles School and but the and cheapens threat that elsewhere the Bork Bork . . . . confirmati represente Mrs. on process d to the to suggest "liberal Garmen that the monopoly t's struggle over the assertio was that great n that kind of academic the petty institution power s." play. Mrs. In fact, Garment the Bork paints a confirmati picture of on would Robert never have Bork as a engaged lonely the gladiator attention of angering the Senate liberals by and the storming American one of the people if it "great were not bastions about of liberal something jur- much isprudence larger. "—a That portrait something that will concerned come as a flesh-and- essentiall against blood y that the which people and Constituti judges their on is will problems. capacious measure The issue enough to their own was encompas actions. whether s tights Of the that are course, constitutio not there is nal explicidy irony in all principles guarantee this. The that had d by its Reagan led the text and administra Supreme that the tion began Court in courts by the past to will warning rule that protect the courts ra-daily the to heed restrictive liberties "the covenants of people groundswe could not who ll of be cannot conservati enforced obtain sm against protection evidenced black from the by the home- elected 1980 seekers, branches election" that of and by political governme calling on dissenters nt—is the public could have hardly an to put their say ironclad pressure without guarantee on the fear of to judiciary. imprisonm minorities In the ent, and that their Bork that states claims confirmati could not will be on battle, make it a vindicate the criminal d. ... But American offense for in people people to themvake responded use birth- of the by making control rejection clear that devices of the the courts would man who should continue repudiate remain the to be d this single available understan branch of to racial, ding of governme religious, the nt where and meaning the political of the majority minorities Constituti does not who today on and rule and seek the the role where protection of the citizens of the judiciary, can obtain courts. the relief from The principles its continued take on a excesses. applicabil new Suzanne ity of vitality; Garment these they are may principles reaffirme lament d as this turn of — standards 10/COMMENTARY MAY 1988 events, but for most of us there and concluded that he was basically Mrs. Garment's failure to come to could be no more appropriate hostile to the Supreme Court's grips with the reasons given for the celebration of the bicentennial of the record as protector of civil rights rejection of Judge Bork by peo Constitution. and civil liberties, though one would WILLIAM L. TAYLOR hardly discern this from Mrs. Consultant to People for Garment's article. For constitution- the American Way on the al reasons persuasive to Bork, far Bork nomination more often than not he would up- A R T H U R J . K R O P P hold the power of the executive P r e s i d e n t , P e o p l e f o r t h e and legislative branches over that of A m e r i c a n W a y the judicial branch to grant re- W a s h i n g t o n , D . C . dress in cases where individual citizens claim to be aggrieved by government. To THE EDITOR OF COMMENTARY: There was nothing in the article There is much truth in Suzanne about the key role played by Penn- Garment's article. There is also sylvania Republican Senator Arlen much truth, of crucial importance to Specter. Unlike some of the others, any rigorous assessment of the Bork Senator Specter had no "original controversy, that she failed to intent" to defeat Judge Bork. Prob- mention at all. ably more than any other Senator, It is easy enough to demolish the he had done his homework careful- Left. But what about the people not ly before the hearings began. . . . of the Left who had serious Senator Specter's questioning of the misgivings about the Bork nominee was generally acknowl- nomination to the Supreme Court? edged to have been thorough, inci- Mrs. Garment did not address these. sive, and eminently fair. He treated Nor did she confront the fact that Bork with the respect and consider- Judge Bork hurt himself badly ation he deserved, yet he was deeply during the hearings because he was troubled by many of his responses. perceived by a number of Senators For instance, Senator Specter found (and others) to have retreated from it hard to understand how Bork positions he had held for so long and could take an expansive view of often had espoused so passionately presidential power, finding room —the so-called "confirmation for "organic development" of that conversion." For one example, Bork power under the Constitution, but had stated previously his belief that apparently finding no such room the Fourteenth Amendment was not for "organic development" of the intended to incorporate the Bill of meaning of "liberty" for individual Rights, i.e., to apply the Bill of citizens under the Constitution. Rights to the states. In his In an op-ed piece in the New York testimony, however, he declared his Times, Senator Specter said, "full acceptance of the "I reluctantly decided to vote incorporation doctrine." After Bork against him, because I had testified, one of his staunchest substantial doubts about what he supporters, Bruce Fein of the would do Heritage Foundation, was moved to with fundamental minority rights, observe, "Bork is bending his views about equal protection of the law to improve his confirmation and freedom of speech." chances, and it's a shame." One of the most devastating In an op-ed piece in the Chicago comments on the Bork nomination Tribune, Philip B. Kurland of the was University of Chicago law school. made by Senator John Warner, a by no means a man of the Left, had Virginia Republican, normally this to say: "Bork's entire current almost unfailingly loyal to the ad- constitutional jurisprudential ministration. Senator Warner said theory is essentially directed to a that he had really wanted to diminution of minority and support Bork and had agonized individual rights." In his testimony for before the Senate Judiciary weeks before he decided to vote Committee, the well-respected against confirmation. In Senator John Hope Franklin, professor of Warner's words: "I searched the legal history at Duke University, record. I looked at this remarked about Bork: "One distinguished jurist, and I cannot searches his record in vain to find a find in civil-rights advance that he him the record of compassion, of supported from its inception." sensitivity and understanding of The point is that a wide range of the pleas of the people to enable him scholars examined Bork's record to sit on the highest Court of the land." ple of the caliber of Senators Spec. and the interpretations offered by night my wife heard me ex-claim,"in ter and Warner discredits her as% the network reporters and anchors. anger, at the misrepresentations tide. Late at night I would listen to provided daily by the print and SAMUEL RABINovz extensive playbacks of the day's electronic media... . White Plains, New York pro. ceedings (I think on C- What I found most disturbing SPAN).... was that these hearings provided To THE EDITOR OF COMMENTARY: When I compared the day's further proof of my observations ... Suzanne Garment's detailed as; testimony of Bork opponents and that liberals have a totalitarian tide was timely, excellent, and supporters with the network news mentality, they are absolutely needed, particularly by those of us excerpts, I had the sense that they intolerant of any ideas that differ who were wondering what consti. were fairly reported. Yet when I from their own. I have never felt so tutes reality. Like most people, I made similar comparisons with politically vulnerable, even knew nothing of Judge Bork, but I Bork's own testimony I was threatened, as I do today by the was willing to learn. Also, I was in. appalled at the differences. The power that the Left has over the terested in hearing the question one networks had prepared me to hear a media and other organizations and asks a candidate for the Supreme social Neanderthal. . . . Instead, I institutions in our society that Court. Therefore I read newspaper heard the opposite. I saw and heard shape our culture.... accounts and magazine articles, a brilliant man, in response to SHELDON F. GOTTLIEB listened to talk shows, and watched specific questions, brilliantly analyze Mobile, Alabama various political-analysis programs. and expound on the law. I saw In particular I listened to the Democratic Senators apparently To THE EDITOR OF COMMENTARY: . . snippets of testimony on the completely uninterested in anything Notwithstanding the blatant television evening news programs the man had to say. Night after political war against Robert H. Bork, including the demagogic LETTERS FROM READERS/ 11

4.itemen had the ts by either a mem- Senators very 1,ers. Biden, simplisti The Ken- c scenario Nfetienb understa played aum, nding of itself out Leahy, constituti )ver and et al., onal over televisio or no again. n understa Senators campaig nding at would n . . . , all... . read a and :he Except diatribe intimida for the against tion of testimon the witnesse y of nominee s, Bork's Bork and then ,pponent himself inarticul s and a ately contend handful Bork to that it of the comment was witnesse . Of the s, there course. :earint:s was little :specially and the principle in the principl d case of ed liscussio Senator discus- n of Kennedy. „on of constitut the script constitut ional was ional law and prepared law none a thirty- therein : from the second hat Democr snippets determi atic so that ned his Sena-:or the fate... . s on the lyening saving committ news viewed ee. could or Far report listened from that the to ?jog of the being a lominee testimon lesson was in y during in favor of the con-,titu the scull- ...earings. tional anon of , I can law, the women, only hearings poll conclude were a ? taxes, oll of and -.hat results 7inally Bork's popular restrictiv opponent with the e Democr covenant s were atic s and destined : member i4amst o defeat s of the voting his committ rights. nominati ee. The abortion, on. From issue and the before Piracy in moment the the the committ marital Senators ee was bedroom. began whether Even their Bork though .juestioni agreed Bork ng of with the stated Bork, I results that he realized ; dear to Weed hot they with the sub To THE result in mit EDITOR many of the OF cal th.e cases COMMEN discusse endar to TARY: d but the Senate . . . As a disagree supporter for a .-e. d pith abolish of the the the Reagan reasonin Court, administrat g, the and ion, as one Senators be-,ine a who feels lever nation comfortabl relented of men, e with the or not philosophi concede laws. cal thrust d. . . . . of COMMEN In ROBE TARY, as essence, RT S. one who Bork and NAYB began with the ERG , - no mem- ers "hum . preconcept of the New York ions and committ spent hours ee . . . listening to were and 'Peskin; watching two very the different confirmati Ian-! on uages • hearings, I As a came away result, with the the feeling that lesson in Robert H. jancset.itu Bork was a .t.ional terrible law nominee. never Every shot took fired in the The "war” was damage fired by the to the nominee in confirma the tion :71c direction of esi has his foot. been Most of done. In them were the Ju- on target. slcurY Edward Committ Kennedy, ee's Norman view, Lear, the role . Gregory 1 the Peck, et Court is aL, were a to reach sideshow. particula Robert r !iult; Bork was comporti ng with the the problem. prevail- Three rno, „ I cheers for in the Anthony committ Kennedy. ee and M the ARTIN the KATZ committee Hartsdale, had.. its · : New York nigh t as To THE well EDITOR OF here in Bork COMMEN Texas, I appointme TARY: would nt was No one like to try designed -likes to to set the to ensure lose, and record that the it is easy straight administra to on how tion's understan and why impact in d why we won. these areas diehard I. We would be supporters influence felt long of Robert d public after H. Bork opinion, January like and 20, Suzanne ultimately 1989.... Garment Senators, While are trying by the White to revise moving House history to quickly to was distort define the telling what terms on skeptical happened which Senators in the debate they had landmark and virtually a Senate discussio constitutio vote on n of the nal duty the Bork Bork to rubber- nominatio nominatio stamp a n. But n took President' Judge place. s choice, Bork was Bork was opponents not the nominate of the victim of d because Bork a "lynch he was nominatio mob" or the most n were of a prominent arguing multimilli national that on-dollar critic of judicial media forty philosoph campaign. years of y was not In fact, Supreme only an the Court appropriat victory decisions. e won by During progressiv the last es and seven civil- years rights President advocates Reagan in and blocking Attorney the Bork General nominatio Meese n was have largely a often grass- been roots rebuffed triumph by the of hard Congress work and and by canny the organizin Supreme g, fought Court fairly and itself in squarely their on the efforts to issues. As follow one who through was on the heavily Right's involved social in the agenda, effort and the area of the debate from the inquiry, yet again. administra but the This time tion's central it was stereotype question about —the before the Bork's Associatio Senate. candor n of Flight The and Attendants critical credibilit , the factor in y, and the American the outcome Public success of of that Health this effort debate Associatio was the was fatal n, the decision to the Federation to focus judge's of Temple on the chances. Women, broad 2. Desp and others issue of ite Bork are not so the role supporter easily of the s' efforts characteriz Supreme to portray ed as left- Court in him as the wing American victim of zealots.... society.... a cabal of 3. We The "special- did our question interest" homework then groups, . became the Reading ! whether oppositio Airs. Bork was n to the Garment's in the nominatio charges of "mainstre n was a "dirty" am" of extremely anti-Bork American broad- campaign, jurisprude based. To you would nce, or be sure, think we outside it. the won by The ACLU, dredging White People for up rumors House the and old and Bork American personal tried to Way, the scandals. overcome AFL- While his career CIO, and there was of strident various some attacks on women's unfortunat the Court and pro- e, and on choice desperate virtually groups mudslingi every played a ng at major leading Senators rights role. But Biden, decision in Texas Kennedy, of the past and Metzen- generatio elsewhere baum, and n by , there others, painting was also there was him as a strong almost judicial participati none of moderate on by this aimed in the Hispanic at Judge mold of and black Bork.. . retiring organizati What Justice ons, did Bork Powell. disability- in was an This rights intensive juxtaposit groups, research ion of the church effort into new Bork leaders, his record with the professio —a extremist voluminou nal clubs, s body of of old and many writings redefined others far and opinions available for examinati on to anyone who was interested. Bork's opponents compiled it early, analyzed it carefully, and circulated it widely. The message was quickly and effectivel y communic ated to Senators that there should be no rush to judgment on Judge Bork. Bork was already a disturbi ng fig- 12/COMMENTARY MAY 1988

ure to many Americans who vocates—not to mention self-styled confirmation process, as Mrs. G. remembered his role in firing conservatives—have went suggests, requires a memon Archibald Cox, and the news that underestimated the degree of public lapse concerning the "results-ori. he had been derisive of important support for basic constitutional ented" politics of the Reagan ad. Supreme Court decisions on privacy values like privacy and equality. ministration. Not since President and civil rights served to mobilize, The debate over Bork became a Johnson has an administration almost instantly, the large and bicentennial referendum on the pushed confrontation over compro. politically sophisticated Constitution, and there was a mise, and successfully, on such a constituencies of women and massive public rejection of the regular basis. In its zest to make minority groups. As one who Reagan/Meese doctrine that the fundamental changes . - the traveled around Texas sneaking on Court should protect only those Present administration has other matters in the first few weeks rights explicitly found in the text, continually inserted politics and following the nomination, I can and leave most personal freedom ideology into what had previously testify to the extraordinary level of and equality issues to the will of been viewed as nonpartisan palpable fear among members of political majorities. . government functions.... these groups. What struck me most GARA Blame the liberal Left? No. In. is that it was not confined to a LA.MAItCHE Executive Director stead, blame those who .. . relatively small circle of civil-rights Texas Civil Liberties Union allowed an honorable man to be and feminist activists, but shared by Austin, Texas sacrificed. ANDRE J. GINGLIts many who had never been Laurel, Maryland particularly politically aware or To THE EDITOR OF COMMENTARY: active. Women were deeply . . . Relatively accurate from the To THE EDITOR OF COMMENTARY: concerned about the real possibility conservative pro-Bork perspective, I had been looking forward to an excellent that their reproductive freedom Suzanne Garment's article did not analysis of the Bork might be curtailed. Blacks were address the Right's own failure to sode in the pages of getting the word that Bork had been get the case for Bork to the people. COMMENTARY, and Suzanne a critic of the Civil Rights Act of No one . . . denies that the actions of Garment certainly did not disappoint 1964, and had restrictive views of an organized liberal coalition were me. I was pleased that she correctly freedom of speech and assembly nothing less than highly charged identified the most dangerous element that would have banned many of the politics cast in life-or-death terms. in the whole affair, namely, the anti- nonviolent protest tactics of the Nevertheless, both the Right and intellectualism displayed in the Southern civil-rights movement. Left were aware, well before the attacks on Judge Bork.... These groups and others came August recess, that a crusade It was clear 'that, in attacking together, state by state, in coalition instead of a confirmation was about Bark, the Left was trying to do efforts. In Texas, for example, more to take place. . . . exactly what it has always accused than fifty groups came together. That conservatives chose to take the Right of trying to do, namely, to They generated thousands of letters the high moral ground . . , shows create a litmus test for Supreme and calls to Senators' offices, held that they miscalculated the Court Justices, one based not on press conferences in virtually every circumstances of the nomination such traits as character, intelligence, major city, obtained the support of and they continued to do so until it and experience, but rather on hundreds of statewide and local was too late to mount a saving whether a judge arrives at the officeholders, and hit the media with offensive.... "correct" conclusion according to everything from letters to the editor Justice Thurgood Marshall of the late 20th-century popular social to radio talk-show calls. present Court was one of the most theory. Simply put, the defeat of 4. Opponents of the Bork practiced Supreme Court lawyers Bork was a victory for sloganeering nomination simply outstrategized ever to be nominated for the and platitudes over reason and the White House and the pro-Bork tribunal. He, too, was eminently intellect. Thus were we treated to forces in the Senate. Sensitive to the qualified at the time of his such gushy profundities as that "special-interest" charge, the civil- nomination, and he, too, was a Bork's views were "not in tune with rights groups opposing Bork kept a victim of highly charged the 80's," implying that the trends of relatively low public profile. Well- politics. . . . His President and his a given time are the measure of right regarded legal and political backers, however, were ready for and wrong.... establishment figures like former either a confirmation or a crusade A common to quoque used by Republican cabinet member and for that reason he sits where Bork's opponents in their defense is William Coleman and former Bork aspired to be. At the time, the that it was the President who Representative Barbara Jordan Marshall hearings were just as politicized the nomination process came to symbolize the opposition, contemptible as the present-day and created the litmus tests, not and none of the organizations in the Bork bashing. The outcome of those they. This argument falls flat on anti-Bork coalition even testified at hearings can be attributed to a analysis. Whatever litmus test the the hearings. Arriving at this strong-willed administration, President used applied to nominees collective decision required the anti- convinced that it was pursuing the from his administration and only Bork groups to overcome pressures correct path and willing to expend from his administration. It in no from their more militant internal all of its political capital. No such way affects nominees from any constituencies and act instead in conviction existed among those who future administration, Republican their overall best interests. In spent the August recess soaking up or Democratic. Reagan chose contrast. the right-wing groups sun in California.... nominees whose philosophy he supporting the nomination were Judge Bork is an able jurist agreed with. as did Jimmy Carter. plagued by infighting all along. deserving of a seat on the Supreme So will all future Presidents. As for The Bork fight has made it clear Court. But to view the tactics used to the Supreme Court, at any given that progressives and civil-rights ad- defeat him as wrong and as an time it is likely offense against the normal judicial 14/COMMENTARY MAY 1988 to consist of Justices nominated by his superb legal scholarship in the To THE EDITOR OF CONIMENTAID, the past five or six Presidents. service of a narrow, potentially Because we generally elect very Like many others, including int dangerous ideology that could reverse self, Suzanne Garment deplores dit different Presidents over a span of hard-won individual freedoms and twenty-five to thirty years, this overtly political campaign againv divide the nation. . . . It would be Judge Bork. However, the politic. makes it likely that at any given much easier to oppose Mr. Bork if he nation of Bork's nomination, wits its time we will have an ideologically were manifestly unqualified for the attendant distortion and trivial. diverse Court consisting of Justices Supreme Court by lack of intellect or ization, occurred as a natural con. nominated by Republicans and experience. The fact that he is not, sequence of the constitutionalin. tion Democrats, liberals and and the potential for misuse of his of moral issues like abortion and conservatives. Leaving the choosing attractive attributes make it all the privacy.... to the President is the best way of more crucial chat the Senate vote The real dysfunction in our pa achieving ideological diversity on against his confirmation. the Court. litical culture is not so much the politicization of the Supreme Court. The Senate, on the other hand, RALPH SLOVENKO or the polarization it has caused, as consists of two opposing parties in Wayne State University it is the illusion, naturally creat• ed perpetual political strife, with one Law School by constitutional decisions, that party in control and the other Detroit, Michigan permanent solutions to such generally having at least enough fundamental questions as abortion power to mount a filibuster. What To THE EDITOR OF COMMENTARY: and privacy may be found. How can this means is that any judicial Suzanne Garment ends her in imagine that such questions can, nominee who does not exhibit the trenchant essay with a reference to or should, ever cease to be debated? most inoffensive centrist philosophy the intolerance of the Left. She is In their scramble to win the war is certain to receive heated on target, as usual. A college of the Supreme Court, both the Left opposition from one side or the classmate of mine, and therefore a and the Right have lost sight of an other, frequently enough to kill his friend of more than forty years' important point: part of lis. ing in a nomina-tion—if the Senate insists standing, stopped by last fall and . . pluralistic democracy is accepting on voting on the basis of politics and . we talked about the Bork affair. that one's political victories are ideol-ogy- He was exultant that Bork had inherently qualified and temporary. It is thus not hard to see why bitten the dust. I raised the I believe that if we aft relearned Senators have tried in the past question of procedure: Bork or no, this, polarization would subside, (with some lapses, to be sure) CO should judicial appointments be political conflict would return to its avoid using ideology as a criterion handled this way? He agreed with natural course, and out political for confirmation, and instead my sense of discomfort with the institutions would be able to cope concentrated on questions of merely procedural aspect. After he with the task of governmg character and experience. For the left, I sent him a letter in which I once again. a worst litmus test of all would be sought to continue the discourse, RALPH GAEBL111 one in which every nominee had to sketching three or four different Jenkintown, Pennsylvania travel the path of least resistance, a ways in which judicial nominations narrow tightrope in the middle of might be handled in order to avoid To THE EDITOR OF COMNIENTART. the road, where any past statement the type of political campaigning Suzanne Garment's article ps or ruling, no matter how we saw in the Bork affair. I invited vides the kind of telling commentary intelligently argued, that bothered him to see if he could come up with which should awaken A thoughtful too many people on either side of some fresh ideas too. That was Americans. The Senate through its the Senate chamber would result in many moons ago. I am still waiting rejection of Robert O. Bork, has possible rejection. The result of this for a reply from my liberal friend. now made it dear tint_ would be a Court made up of The terrible suspicion arises within ¨ it approves of the Supreme monolithic robots.... Comfy deciding cases by using me that he is not really dissatisfied reason' which have nothing Ironic, isn't it, how groups which with the Bork proceeding. whatever w have so often attacked the use of WILLIAM F. RICKENBACKER d "fear and passion" in political Atkinson, New Hampshire with the Constitution. In caber campaigns where the victims were words, it is perfectly all right wit, the liberals, had no objections to the To THE EDITOR OF COMMENTARY: Senate if the Supreme Coal imposes very same kind of tactics on this . . . The willingness of Judge Bork its will and functions ass policy- occasion, where politics is not even to discuss his previous writings, to making body. The Amerind' supposed to be a force? ... explain them away, and to discuss people . . . and the concept of self R.K. specific cases may have suggested to government have thus been dealt' BECKER Racine. Wisconsin his opponents that he was real blow.... vulnerable... . The balance conceived for nor To THE EDITOR OF COMMENTARY: Once Bork revealed his system of government is in real doP Suzanne Garment points out that vulnerability, he encouraged his ger. When it becomes a the deepest hatred of the Left is political opponents to make practice for national policy deft reserved for public figures who demands that. if not rebuffed. will sions to be made by nine unelecoes champion conservative ideas with a turn the Supreme Court into the Justices with life tenure and °sr genuine intellectual skill. That is well grand marshal of that liberal elected Senators do not possess !be illustrated in an editorial that courage to act to correct theior coalition against Bork that has dis. appeared in the Detroit Free Press raised hypocrisy to the level of balance. some serious cluesa (October 1, 1987): political art form. should he asked by the people- of DAVID them should be, Is this coup to he Mr. Bork. if confirmed, would use ZUKERMAN Bronx, New York governed by the United Saw. Neither does Mr. Schwartz inform his readers that Bork has put Supreme Court? Second, What is it about the Supreme Court that qualifies it to govern? ... The defeat of Judge Robert Bork, as portrayed in Mrs. Garment's article, is in fact a real defeat for the kind of self-government people like to believe we have. At the very least, we should pull the veil away and admit that government by the judiciary does exist. Suzanne Garment, thank you for your incisive analysis. Would that others who need to know might understand the message. THOMAS A. BUSTIN Gainesville, Florida

SUZANNE GARMENT writes: Of all these letters, Harry V. Jaffa's clearly contains the most far-reaching criticism of Robert Bork's jurisprudence. The assumptions we make about the influence on the Framers of a particular contractar-ian philosophy must have a great effect on our thinking about almost every topic that became controversial during the Bork nomination hearings. Would that the discourse in those proceedings had been about the matters Mr. Jaffa has raised. I hope he will not take it amiss if instead of dealing directly with his argument, which others are better qualified to address, I merely call attention to an important piece of information in his first sentence: Mr. Jaffa supported Judge Bork's nomination to the Supreme Court. During the confirmation fight, people with far less serious complaints against Bork took a far narrower view of the tolerance appropriate to the citizens of a pluralist democracy in a situation like this one. Before any discussion of this broad subject, though, comes the job of clearing away some factual underbrush. A few of these letters say things about Bork and the anti- Bork campaign that are not correct. Herman Schwartz summarizes Bork's views on free speech by saying that Bork thinks the Constitution protects political speech but not art and literature. But over the past fifteen years, as Mr. Schwartz neglects to tell his readers, Bork has come to the view that if we want to protect free speech in the political arena, we must protect art and literature as well. He takes the position, in fact, that constitutional protection extends to anything in the arts short of obscenity. LETTERS FROM READERS/15 his judicial opinions where his mouth is. During the time he served on the Court of Appeals Bork's free- speech record was exemplary from the point of view of civil libertarians on issues involving nonpolitical as well as political speech. Mr. Schwartz summarizes Bork's views on the equal-protection clause by telling his readers that Bork thinks it probably should have been kept to racial and ethnic categories and should not have been extended to women. But Mr. Schwartz does not mention Bork's long-held and express view that the equal- protection clause applies to what its language says it applies to —"any person," which most certainly includes women. What Bork has consistently objected to is a particular interpretation of the equal-protection clause under which the courts must put people into ever- multiplying special categories and give different treatment to the different categories under the same equal-protection clause. In my article I quoted a TV ad by People for the American Way charging that Bork "defended poll taxes." I said that this was not so, and that what Bork disagreed with was a particular line of reasoning the Supreme Court majority used in addressing the poll-tax issue in the Harper decision. In their letter, Arthur J. Kropp and William L. Taylor of People for the American Way reject my characterization. "Neither People Eor the American Way nor any other Bork opponents that we know of," they say, "ever charged that Bork favored poll taxes." Well, what about that TV phrase, "defended poll taxes"? "Bork," they give as their justification, "challenged the authority of the Supreme Court ... to take the only effective actions that were available . . . to enfranchise black citizens." But the ad said "defended poll taxes." The ad did not say "took actions that had the effect of perpetuating poll taxes," or "revealed at the least a gross insensitivity to the socioeconomic conditions surrounding the operation of poll taxes," or anything else of the sort. The ad said "defended poll taxes." The phrase conveys the plain, ordinary, clear meaning that Bork did something deliberately or actively or at least consciously in behalf of poll taxes. That meaning is what gives the sentence in the TV ad its emotional force and persuasive power. But it is not true. 16/COMMENTARY MAY 1988

The same People for the American numbers and in their usual gan administration got what it Way ad claimed that Bork "doesn't patterns, are "the racial politics of deserved, first by introducing believe the Constitution protects a Jesse Helms." I can assure them, politics into the selection of federal your right to privacy." I said this if indeed they are truly worried judges and then by conducting those was not so. Messrs. Kropp and about this possibility, that I meant politics badly in Bork's case. As Taylor reject this accusation, too. no such thing. Andre J. Gingles points out They justify their radical Samuel Rabinove thinks Bork forcefully, full-blown political characterization of Bork's views by underwent a "confirmation storms have af. fected judicial charging that he once called a conversion" when he said that the selection periodical. ly throughout couple's desire not to have children Bill of Rights is incorporated into the life of the republic. The Reagan "indistinguishable for constitutional the Fourteenth Amendment. Mr. administration did more, critics purposes" from a company's desire Ra-binove says he holds this opinion contend, because it introduced to " 'void a smoke-pollution because Bruce Fein, a legal activist politics as an explicit, routine ordinance.' " of the Right, criticized Bork for criterion for choosing judges. Some When Messrs. Kropp and Tay-lar changing positions on the issue. In of those in the Reagan effort say, cite this scary quotation, they are fact, Bork has long said that while when asked about this, that their withholding some relevant the "interpretivists" have a good efforts have been peanuts compared information. Bork used it in an argument when they claim the Bill with the concerted pressure and article to illustrate the absurdities of Rights was not incorporated, systematic target numbers that the of an older, discredited legal era recent evidence on the question has Carter administration applied to get when conservative jurists were thrown their position into more more women and minority. group guided by ideas of substantive due doubt. Either way, the factors of members onto the federal bench. process that have been resurrected time, precedent, and practice woven Insofar as they gave excessive by some on the Left today. Messrs. into the very fabric of our society legitimacy to politics rather than to Kropp and Taylor have turned have done the job of incorporation merit as a standard for judicial Bork's meaning on its head. Thus, quite satisfactorily. Bork's position selection, what the Reagan and instead of successfully documenting does not please the Right. But it is Carter administrations did was the "privacy" quotation used in no conversion, either. bad. But for Messrs. Kropp and their TV ad, they have managed to On a larger matter, the letter- Taylor to use this recent history as compound misrepresentation with writers express an interesting variety the justification for what they did more misrepresentation. Once of opinions on whether the Senate to Bork is at least as bad. The again, what they said on TV about hearing was admirable or Carter and Reagan Bork is not so. contemptible. Sheldon F. Gottlieb administrations, after all, did their More briefly: Messrs. Kropp and and Robert S. Nayberg complain that work within the old framework of Taylor say I distorted reality by Bork's testimony was good but badly the bar associations and local legal picturing Bork as a "lonely covered by the press and that the establishments. Peo-pie for the gladiator angering liberals" at Senators seemed incapable of American Way, in a great leap Yale. As proof of their charge, they conducting the serious questioning forward, took the Supreme Court produce the names of four other appropriate to the occasion. Martin confirmation process into the age of more or less conservative Yale law Katz, by contrast, thinks Bork's own national media campaigns and professors, living and dead. With performance was the problem. grass-roots organizing. This change all due respect, anyone who can In a similar vein, letter-writers makes a big difference in the way make this argument in good faith cite the anti-Bork votes of Senators issues are framed, the has not spent much time at Yale Stennis, Stafford, Specter, and sophistication with which they are with his eyes open. Messrs. Kropp Warner as proof that the Senators addressed, and the limits to and Taylor must not have noticed, cast their votes for high-minded partisanship. Once again Mr. La- for instance, the unseemly reasons and that therefore the Marche's letter provides evidence. promptness and angry force with Senate could not have been The letter from R. K. Becker which some of Bork's liberal Yale responding in any decisive part to provide& a more elegant comment colleagues placed themselves in the outside pressures when it rejected on this matter. Presidents have visible forefront of the fight against Bork. I am not going to discuss the always tried, within limits, to put him. motives and behavior of the like-minded people on the federal On the same subject, I said in my particular Senators mentioned. bench. Out of these appointments article that part of the opposi- There is not the slightest doubt that by different Presidents with · don to Bork grew out of some Senators cast their votes for different views comes, in the short political struggles taking place principled, unfettered reasons. As or the long run, judicial diversity. within the universities. Messrs. for some others, though, I call But the anti-Bork people had a Kropp and Taylor deny that this readers' attention to the letter from more ambitious goal. By calling could be so, saying of me: "She Gara LaMarche describing in detail Bork "out of the mainstream," they trivializes and cheapens the Bork the vigorous, organized, and tried to establish that no judge confirmation process to suggest politically sophisticated efforts of with his views should ever be on that the struggle was that kind of one wing of the anti-Bork forces to the Supreme Court, no matter petty power play." I introduce this make its voice heard in the Senate. what the administration. sentence into evidence on the They should then ask themselves This claim took the anti-Bork question of how much Messrs. how plausible it is for anti-Bork partisans into the realm of Kropp and Taylor know about partisans to claim that the Senators intolerance, and several letter- campus politics. never heard those voices. writers find this change the most They also seem to accuse me of Another theme in several letters is ominous part of the Bork episode. saying that the "normal" senatorial the question of whether the Rea It is. The most disturbing feature politics of the South, when white of the letter by Messrs. Kropp and Southerners vote in their usual

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