We put a question to Jack Fuller. What if Robert Bork is confirmed to the Supreme Court, and then age and infirmity drive William Brennan and Thurgood Marshall from it? And President Reagan nominates two more Borks? Then, would Fuller object?

“If they were people like Bork, no,” said Fuller thoughtfully. “That is, if they were serious-minded people committed to the Constitution and to the law.”

And if they were 35 years old?

“I suppose then he’d be testing the limits of deference. And it wouldn’t be very prudent of him to do it.”

We were testing Fuller’s limits. He believes that in Robert Bork the president has nominated a wise and principled jurist, and the Senate should ask no more. As editor of the editorial page of the Chicago Tribune he’s made short work of anyone who’d disagree. But Fuller knows Bork personally, having studied under him at Yale and worked beside him at the Justice Department during the Ford years; and while he parts company with Bork on this issue and that, he likes the man and applauds his commitment on the overarching question of judicial restraint.

Geoffrey Stone, dean of the University of Chicago Law School, told the Sun-Times that Bork is “cut from the same cloth” as William Rehnquist, Antonin Scalia, and Sandra Day O’Connor, all justices “on the extreme edge of respectable legal thought in the United States.” And isn’t three plenty?

But Fuller puts Bork “well within the mainstream of American jurisprudence.” (When we mentioned what Geoffrey Stone said about the four justices’ ideas, Fuller said, “That’s funny. They’re in the mainstream of his faculty.”) And he isn’t worried about a lockstep bloc on the right.

Scalia also was at Justice with Bork and Fuller, and “they weren’t always on the same side of things by any means.” Fuller went on, “I would worry if you had a group of people more committed to a political program than to the law. Bork doesn’t fit that mold any more than Scalia.” If Reagan filled the Supreme Court with justices “cut from the same cloth” as Robert Bork–“you’d have debate in the court,” Fuller assured us.

Sure, but over what? We can’t dismiss the simple political argument against Robert Bork–he’d mean too much conservatism on the Supreme Court, too late in Ronald Reagan’s presidency. And we think Fuller has not done his finest writing in attacking it.

The first editorial, when Reagan nominated Bork in July, was tailored to shut down debate rather than direct it. Fuller cited Bork’s “intellectual strength,” his “witty, direct, and often eloquent writing style.” And he concluded haughtily: “If the members of the United States Senate are as intellectually honest as Judge Bork, they will have no choice but to consent to placing him on the court that he has seemed destined to join.”

A month later, Fuller wrote: “In effect, Judge Bork’s ideology is that Congress–and other legislatures and elected officials–should decide most issues of governance. Do his opponents in the Senate really think it is more in accord with our democratic values to have nine unelected judges decide the great issues of our times?”

That seemed a smug way of putting it. In 1954, the Supreme Court–not Congress–abolished “separate but equal” public schools. Perhaps the nation would have been better served had Congress acted, although we think there was a useful majesty to the 9-0 decision that would not have been equaled by a rider to an omnibus education bill. But when great issues go undecided though their hour has come, should the Court sit idly by?

In mid-August, Fuller wrote that Senate Democrats who oppose this choice of Reagan, in order “to deprive him of the power to bring about any significant shift” in the Court, are as high-handed as FDR was when he tried to pack it. “They have every right to vote against Judge Bork for any reason they please,” Fuller continued. “But the public should recognize the audacity and arrogance of what they are trying to do.”

He’d lost us. Reagan has already appointed two justices whose views he admired and named a third chief justice. Now that the Court is on the threshold of a most dubious sea change, our senators have no respectable grounds to oppose it? The Tribune was disenfranchising us. We called Fuller to tell him so.

“You talk about disenfranchisement,” said Fuller, who is anything but smug or haughty in conversation. “When a court strikes down a law as unconstitutional, you’re disenfranchised. The essential question is, under what circumstances is the majority will forbidden from having the force of law? The position a guy like Bork takes is there are values embodied in the Constitution, but you don’t create them.”

But can’t you find them? The Ninth Amendment posits that “the enumeration . . . of certain rights, shall not be construed to deny or disparage others retained by the people.” Fuller said, “Frankly, I don’t know what to make of the Ninth Amendment, and I don’t think many people do. If the Ninth Amendment means the Court can decide what is a right and what isn’t a right, then we have created a group of philosopher-kings and that isn’t a very democratic way of governing ourselves. The Ninth Amendment could be used by very conservative jurists to strike down very humane legislation. It could be used to strike down abortion legislation–the fetus has rights too. Courts in the 30s struck down all sorts of social legislation on grounds it violated property rights. [Fuller believes the Warren Court did much good; it’s the Court FDR inherited that’s his classic example of overreaching–even though he thinks FDR’s idea of curbing this Court by expanding it with his own men was high-handed.]

“There’s a huge irony in all this. The real issue here is the extent to which the Court will allow Congress and legislatures to make law. And the legislature is balking. There were many happy consequences to the era of judicial activism. But one of the unpleasant ones is that political leaders are happy to be irresponsible on grounds the courts will take care of it.”

The most influential critique of Robert Bork was Ronald Dworkin’s in the New York Review of Books. From references we’ve since seen to it, Dworkin filled Bork’s opponents with hope that he may actually be as bad as they want him to be.

Dworkin made the familiar observation that the Constitution must be viewed as an expression of “large and abstract convictions of principle.” Otherwise, how could we eventually ban segregated schools on the strength of a 14th Amendment (“equal protection”) whose authors in 1868 clearly approved of them?

But at what “level of generality” does Bork think the Constitution should be interpreted? Bork agrees that government cannot discriminate on grounds of race; yet, Dworkin observes, Bork finds the Constitution silent about discrimination on grounds of homosexuality. So what’s Bork’s theory? Dworkin thinks Bork has none, just rules that “protect only a few groups while excluding others in the same moral position.” What it looks like, Dworkin wrote, is that Bork’s “principles adjust themselves to the prejudices of the right, however inconsistent these might be.”

Fuller praised Dworkin’s piece as “a serious argument, an epistemological argument” against Robert Bork. But–he thinks Dworkin has attacked Bork at a level where anyone is vulnerable. “I believe in the inevitability of ambiguity,” he said. “People I get very nervous about are those who feel it is permissible to set out first principles in the certainty they will lead to inevitable conclusions. It’s a recipe for self-righteousness, and Bork isn’t like that.

“You can raise the epistemological question about anybody’s theory. You can and you should. But that doesn’t end the debate.”

Besides, said Fuller, when the Senate begins the debate over Robert Bork, epistemology will never enter into it.

Fuller put his arguments far more gracefully in conversation than he has in the Tribune. We suggested he take some space on the op-ed page to write more personally and at length. We were sorry to hear Fuller say he’s comfortable writing editorials and he didn’t think he’d do that.

Art accompanying story in printed newspaper (not available in this archive): photo/Paul L. merideth.