Bork Takes the Stand for Judicial Principles
THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW By Robert H. Bork, New York: The Free Press, 432 pp., $22.50
ON Oct. 23, 1987, the United States Senate, by a vote of 58 to 42, rejected the nomination of Judge Robert Bork to the US Supreme Court.
The vote was anticlimactic; the result was foreordained days earlier in the culmination of one of the bitterest political episodes in recent American history. The battle over Bork's appointment, which riveted the nation's attention, unleashed political passions exceeding those aroused by any public event except presidential campaigns. The jihad against him - from Sen. Edward Kennedy's venomous opening salvo - exhaled an ugliness that courtesy and comity usually keep submerged in American public life.
Yet this extraordinary political bloodletting took place over a judge, a member of the ``least dangerous branch.'' To paraphrase Napoleon on the pope, how many legions does the Supreme Court have? What was going on here?
In this book Judge Bork tells us what was going on. It is a profoundly important work, an intellectual achievement of the first rank. That's not to say it will be universally so regarded. Regrettably, many of the likely reviewers, and most of the prestigious reviewing publications, represent the very intellectual culture whose ideas and works Bork challenges. It's to be anticipated that in many quarters the book will be dismissed as Bob Bork's sour grapes. Happily, literary works sometimes take on lives of their own, defying the herd of ``independent'' critical minds (witness Allan Bloom's bestseller, ``The Closing of the American Mind''), especially when the works resonate with ``average'' Americans' moral, political, and cultural intuitions. This book deserves such a fate.
Most readers will recall the themes of the Bork confirmation battle - at least, as they were filtered through the news media (which, as Bork documents, were almost uniformly hostile to him). Bork, it was said, had been nominated by Reagan as part of the president's scheme to politicize the federal judiciary with ``ultraconservatives.'' Bork was radical, ``out of the mainstream'' of the American constitutional tradition. He was indifferent, if not openly antipathetic, to civil rights, minorities, women, and privacy.
Although Bork's opponents did, indeed, tirelessly horsewhip him with these charges throughout the long confirmation process, the fight was actually being waged over very different issues, issues that - partly because of their complexity, and partly because of the opposition's deliberately vulgarized and sensationalized claims - remained largely hidden from the public. Bork tried to address the real issues in his testimony, but he was drowned out in what he rightly calls the ``hysterical campaign'' against him.
Those issues are the place of the Constitution in the American political order; the role of courts, especially the Supreme Court, in democratic arrangements; and the proper philosophy to be used by judges in interpreting the Constitution and applying it to modern conditions. Deeper still, there's the question of the relation between law and morality.
Bork's thesis, stated with a necessary brevity that misses much of its subtlety, elegance, and moral force, is this: The framers and ratifiers of the Constitution (including the Bill of Rights and the post-Civil War amendments) created a political structure in which power is reserved for the people and the political branches of government, except with regard to certain enumerated rights upon which the majority can't encroach. Political power was consciously withheld from judges, whose sole job is to apply the law to ever-changing circumstances.
Judges do their job properly only when they interpret the Constitution and statutes in accordance with the original understanding (which is less subjective and more precisely ascertainable than the original intent) of those who made and ratified the applicable law. Any other judicial philosophy by which judges arrogate political power to themselves and substitute their moral predilections for those of the majority is undemocratic and, however well-meaning, ultimately destructive of freedom - which Bork defines not only as freedom from oppressive government, but also the freedom of republican self-government.
This statement of constitutional principles probably will strike many as unexceptionable, even self-evident. To many of its antagonists, though, the doctrine of original understanding is a conspiracy of the privileged to block creation of a just society - even though Bork's views are fully flexible enough to allow the Supreme Court to end such injustices as racial segregation.
Through a host of sophisticated and, for reasons Bork explains, purposely opaque theories, the critics of original understanding and judicial restraint - concentrated principally in the elite law schools - have labored to discredit the doctrine and to legitimize alternative doctrines, all of which share the goal of empowering judges to become legislators and circumvent majority rule. This usurpation of law by politics - what Bork calls ``judicial lawlessness'' and ``moral imperialism'' - is the ``seduction'' of the book's title.
While historically judicial imperialism has been a sin of the right as well as the left, since the New Deal its operation invariably has served to enact parts of the liberal agenda. Its products include extreme forms of affirmative action that more properly are termed reverse discrimination, and an open-ended privacy right that, whatever its merits, finds no basis in the Constitution.
It's not surprising that, in a fundamentally conservative and middle-class society whose ideas of social justice fall short of utopians' egalitarian fancies, the left has taken refuge in the least democratic branch of government, where its leverage can vastly exceed its political power. The threat to this leverage posed by Robert Bork, accounts for the savagery of the assault on Bork's record and reputation.
Though the book obviously deals with matters of surpassing seriousness and importance, its wit, graceful style, patient and generous spirit, and hearty common sense make it a delight to read. Ignore any sneers about ``Bork's revenge.'' Read this book. It will deepen your understanding of American democracy.