Borked! Really? (Concluded)

To many, Bork had adopted positions in order to be noticed by the right wing with the goal of being nominated for the Supreme Court. His ambition had long been apparent. A Yale Law School skit well before his nomination said, “Bork would do anything to get on the Court.” As a judge on the Court of Appeals, he gave many speeches to right wing groups leading some to conclude that he was trying to curry favor with the Reagan administration. A speech at Carleton College delighted a brand of conservatives when he said that egalitarianism rejects hierarchies. Such rejection of hierarchy lead to moral relativism and denies the right of society to impose moral standards (unless, of course, those standards include rights for minorities, women, and people engaging in sex). Such moral relativism, Bork maintained, leads to business regulations to redistribute wealth. Instead, Bork said, inequality is, and should be, the natural condition.

The conservative University of Chicago Law School professor Philip Kurland, my teacher who had a deep intellectual influence on me, said what many believed: Bork adopted views that pleased the right to promote himself. Bork certainly led conservatives to believe that he was ready to overturn many despised Court decisions despised by the right. A few months before his nomination he had said that an originalist judge should have no trouble in overruling non-originalist decisions because such precedent “has no legitimacy.” A few years earlier he had said, “I don’t think precedent is all that important.” Again, however, as with other views that now seemed to impede his path to the Supreme Court, he changed. At his confirmation hearing he said that “great respect” must be given to precedent.

Bork’s positions and their changes led many—I am included in this—to believe he was unprincipled. Bork had attracted the attention of conservatives, and had secured his nomination, by criticizing Supreme Court decisions that, he proclaimed, needed to be overturned by a Court that based its decisions on original intent, the only valid method of constitutional interpretation. But at the confirmation hearing, Bork again and again said that many of those decisions were now acceptable as firm precedent, or they now represented his views, or they could be reached by different reasoning. As Senator Patrick Leahy satirically said, Bork often had a “confirmation conversion.”

Another senator asked Bork why he wanted to be on the Supreme Court. Bork replied that he hoped that he could contribute to our constitutional governance, but he also said that he enjoyed the courtroom and the “give and take and the intellectual effort involved.” He continued that “the Supreme Court has the most interesting cases and issues, and I think it would be an intellectual feast just to be there. . . .” Ethan Bronner comments: “Bork’s ‘intellectual feast’ line would live in infamy. . . . The bearded egghead from Yale just wanted to play with ideas. He didn’t understand that beyond those elegant intellectual constructs, the lives of real people hung in the balance.”

A Supreme Court justice should have more than an intellect. A justice should understand society and history, not just constitutional decisions. A justice should have empathy and not just bloodless legal smarts. Time and again in the confirmation process—when he discussed his civil rights, privacy, and free speech positions—he indicated abstract intellectual views that were divorced from the impact his positions would have on everyday Americans.

Bork’s confirmation process brought out things that were unfair, but it also brought out an extensive examination of his views that were relevant in determining whether he should be on the Supreme Court. Bronner summarizes: “Bork answered questions for thirty hours over five days. Inside the hearing room there was posturing, but there was also real intellectual give and take. Bork had the opportunity to lay out his constitutional vision. The dispute over Bork can be summed up as a substantive debate with some slander.”

Rereading Bronner’s Battle for Justice again, I concluded, again, that Bork was not borked. Instead I was reminded of what William Blake said: “The fox condemns the trap, not himself.”


Borked! Really? (continued)

Bork’s civil rights stances concerned many during his 1987 confirmation process. He had not challenged Brown v. Board of Education, but when Congress considered the Civil Rights Act of 1964, Bork wrote a magazine article opining that while segregation was morally wrong, we should not have laws enforcing morality. He stated, “The principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. This is itself a principle of unsurpassed ugliness.” He used examples of barbers and chiropodists as those who should not be forced by legislation to serve blacks. As Bronner states, “those were codes at the time for the feelings of racists who did not want to have to touch blacks.” Labeling the desegregation of hotels, restaurants, gas stations, grocery stores, and other places open to the public as a principle of unsurpassed ugliness haunted him in the confirmation process.

At the Senate hearings, he said that while he had changed his mind about the Civil Rights Act even earlier, he had announced this change in 1973 at his confirmation hearing for Solicitor General. He said that his original stance was fueled by his concern over the coercion of individuals but had no good answers when asked if he had ever thought that segregation coerced black individuals. It was noticed that he publicly stated his changed mind only when his old views might have stood in the way of getting a position he sought.

Doubts about his sincerity and his civil rights views deepened in an exchange with Senator Arlen Specter at the hearing. Brown v. Board of Education was based on the Equal Protection clause, which applies to the states but not to the District of Columbia. The Supreme Court, shortly after Brown, used due process to hold that segregated schools in the nation’s capital were unconstitutional. When pressed by Specter, Bork said that he could not think of a rationale for Bolling v. Sharpe, the D.C. desegregation decision. At a break that occurred shortly thereafter, Bork’s advisers cautioned that he could not let his answer stand, and when the hearings resumed, he announced although he did not have a rationale for the decision, that “does not mean that I would ever dream of overruling Bolling v. Sharpe.” A calculated change of heart? It looked that way.

To many his civil rights stances seemed as to be abstract positions divorced from the harsh realities of America and its history. Bork’s views of constitutional privacy evoked similar reactions. In a 1971 law review article, Bork denominated himself a strict constructionist and said that only liberties explicitly protected in the Constitution could have constitutional protection. If the Constitution does not address a value, it must be left to the federal and state legislatures. He went on to attack Griswold v. Connecticut, a 1965 Supreme Court decision. Connecticut law forbade the use of contraceptives. That law had not just forbidden them for unmarried couples. No one could use them. It was a crime for a married couple to slip on or slip in a condom or diaphragm. The Supreme Court held this law unconstitutional, and many besides Bork found its reasoning troubling. The Court relied on a right to privacy that is not explicitly stated in the Constitution.

Bork’s criticisms of Griswold, however, went beyond what others had said. In what was an awkward analogy (to put it generously), he found identical a couple’s desire to use banned contraceptives and a company’s wish to defy a smoke pollution law. He wrote, “There is no principled way to decide that one man’s gratification is more worthy than another.” He went on to mock the Fourteenth Amendment’s Equal Protection clause by stating that the Court had created the “Equal Gratification” clause. (His analogy was remarkably bad. When a company pollutes, others must deal with the dirt and health effects of what is spewed into the air. Pollution is not a private affair. There are not similar external consequences when I hurriedly pull on a ribbed-for-pleasure Trojan.)

Bork’s view on privacy also appeared inconsistent with some of his other beliefs. Protected liberty, Bork maintained, was limited to what was enunciated in the Constitution, and that category could not be constitutionally expanded. He felt that individual liberties impeded the liberty of the majority. If I have a constitutional right to read pornography, the right of the majority to determine the community it wants is denied. But, of course, just as the Constitution does not explicitly give me a right to dirty movies, it does not explicitly give a right to the majority to ban them. Either right is an expansion from what is in the Constitution. Why one expansion and not the other? Bork was unclear of his choice of one over the other.

Bork was also asked about another inconsistency. The Constitution’s framers sought an executive with limited powers. Bork, however, claimed that the executive power was not static but was meant to evolve. Certainly, the Constitution does not explicitly grant evolutionary powers to the executive. So, of course, Bork was asked if executive power was not static and could evolve, why can’t liberty and other parts of the Constitution also evolve? Bork had no cogent answer. For many, Bork’s determination of what could grow and evolve was not based on any real constitutional principle. Instead, it was driven by a slightly disguised authoritarian agenda.

Bork’s privacy analyses took on some rather ridiculous solutions. If the community outlawed contraceptives, Bork maintained, the objector could move to another state as if this were as easy as going to the corner drugstore to get a cigar. When the Ku Klux Klan controlled Oregon in the early twentieth century (do schools in Eugene and Portland teach this history?), the state prohibited private education because it did not want Catholic schools. Moreover, due to differing prejudices, states had prohibited the teaching of certain foreign languages. The Supreme Court struck down these laws using a privacy analysis. For Bork, however, all those Oregonians who wanted a parochial education should have left the state and Nebraskans could move to get German classes.

But, again, Bork waffled. Although he had frequently attacked Griswold in uncertain terms, in the Senate hearing he became mealy-mouthed. He said that while the right-to-privacy rationale of Griswold failed, perhaps there was a more constitutional way to reach its result. He had never before suggested that.

Bork’s free speech views may have gotten even more attention than his civil rights and privacy positions. He had contended that only political speech was protected by the First Amendment. Artistic or personal speech could be regulated. This standard brought on many questions. For example, it is often hard to determine what is political speech. Was Upton Sinclair’s novel The Jungle about the meat industry political? If the cattle industry in Texas had controlled the legislature could that state have validly banned the book? And if nonpolitical speech is not protected, art books containing photographs of Michelangelo’s David could be banned if they offended officials’ sensibilities.

Furthermore, Bork maintained that the First Amendment did not protect all political speech. Speech advocating the government’s overthrow or advocating the violation any law could be suppressed. Bork was asked: Doesn’t this mean that Dr. Martin Luther King’s advocacy of violating segregation laws could be suppressed or even made criminal? Bork’s answer, according to his previously stated opinion, should have been “yes,” but again there was waffling. He now said that King’s speech was protected because King was testing the constitutionality of the segregation laws and because those laws were later found to be unconstitutional. This “new” position meant that King’s urgings would get First Amendment protection if they were not meant to provoke a constitutional test but not if were only aimed at getting a legislature to change the laws. And as Senator Patrick Leahy pointed out, Bork’s new position failed as a sensible legal standard—how could a person know in advance whether speech was protected if it took a later finding of a law’s unconstitutionality for protection?

Bork changed his position at the confirmation hearing on equal protection, too. Before his confirmation hearing, he had maintained that the original intent of the Equal Protection clause meant it only applied to race. It definitely did not apply to women, but now he enunciated a “reasonable basis” test for gender discrimination, a position he had never before mentioned. All these changes raised concerns about his intellectual integrity.

(Concluded on September 10)



Borked! Really?

History is not what is lived; it is what is remembered. As a character in Richard Russo’s Trajectory states, “Just because I wasn’t there doesn’t mean that I can’t remember it.” But even those who were there may not remember it the way that it was lived.

The O.J. Simpson murder trial is an example. Polls the day after the verdict found that the majority of Americans thought the not-guilty verdict was right. Although a higher percentage of blacks agreed with the outcome than whites, a majority of whites also said that guilt had not been proved. TV had shown gavel-to-gavel coverage of the trial with extensive summaries in the evening, and the proceedings had been heavily watched. The day-after opinions were largely based on what the poll respondents had personally observed of the trial.

A month later, however, polls showed a different reaction to the trial. Now a majority of whites thought that the verdict was wrong while a strong majority of blacks continued to see it as right. Memories of the trial had changed not because respondents had gained more experience of the trial. Instead, they heard others, often TV pundits discussing the case, people who often had had no more experience of the trial than the respondents. But for those who had changed their minds a month after the trial, history had changed. Memories were different from what they had experienced, and the memories were based not just on the events but also had incorporated how others portrayed the events. What was “true” had changed.

I am reminded of the comedian I saw who said that someone who remembers everything has a photographic memory, but then there are those who make up memories and believe that they are true.  They have a PhotoShopic memory. To some extent, we all have PhotoShopic memories.

These thoughts popped up because we are entering a season in which we may hear the term “borked.” Merriam-Webster defines this slang word: “to attack or defeat (a nominee or candidate for public office) unfairly through an organized campaign of harsh public criticism or vilification.” The Oxford English Dictionary says “bork” means “to defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”

The term comes from the nomination by President Ronald Reagan of Robert Bork to the United States Supreme Court in 1987. A superficial glance showed a nominee well credentialed for the Supreme Court. After graduating from an elite law school, Bork worked at a distinguished law firm and then joined the faculty of Yale Law School where he became a famous antitrust scholar. He served four years as Solicitor General of the United States, the office that represents the federal government before the Supreme Court. A few years later, Reagan appointed him a judge for the United States Court of Appeals where he was sitting when nominated for the Supreme Court.

This c.v. made him look superbly qualified for the high court, but the Senate still rejected his nomination by a vote of 42 in favor and 58 against. A conservative story then took root. Bork was well known for his conservative views about how the Constitution should be interpreted. Conservatives maintained that until the Bork nomination, presidential nominees, especially Supreme Court nominees, were rejected only for incompetence or corruption, and Bork easily met what had been the prevailing standard for approval up until then. Bork was rejected, conservatives maintained, not because he was unqualified, but because he was a conservative. It was party politics, they claimed, in an area that had previously been free of partisan politics, that prevented Bork from being confirmed. And it was ugly partisan politics. Conservatives claimed that the opposition campaign to Bork was filled with slanders, vilifications, and irrelevancies. Bork lost the nomination because he was “borked.”

Many accept this “history,” including friends of mine who recently said that the Democrats without precedent politicized the Supreme Court nomination process with Bork and that Bork was treated unfairly. Their implication is that Bork should have been confirmed. This made me wonder about my own “history” of that nomination. I remember that I was opposed to Bork’s elevation to the Supreme Court, and, not surprisingly, I thought that I had good reasons for that position. I also remembered that friends and mentors of mine who had been colleagues of Bork also opposed his nomination. Were these people whom I respected simply accepting calumnies or being anti-conservative partisans in thinking Bork was not fit for the Supreme Court? Was I?

To gain perspective I re-read Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America. I had read the book shortly after it was published in1989. It was updated in 2007, and it was this newer edition that I now read. Battle for Justice was what I remembered it to be—a well-researched, dispassionate account of the nomination fight. And I was confirmed in my memory. There were compelling reasons to oppose Robert Bork’s nomination to the Supreme Court. (What follows is largely drawn from, and sometimes paraphrases, Bronner’s book.)


(Continued on September 5)