To the editors:
The Reader’s articles on Judge Robert H. Bork’s nomination to the Supreme Court–“The Law: People v. Robert Bork” (August 14) and “Bork! The Tribune’s Pages Sing” [Hot Type, August 28]–tell us about the people predictably lining up on each side of the confirmation fight in Illinois, but they do not adquately explain what the fight is about.
On the pro side, we see the establishmentarian Chicago Tribune in the persona of editorial writer Jack Fuller, who “knows Bork personally, having studied under him at Yale and worked beside him at the Justice Department during the Ford years.” Pitted on the other side, we have the upstart Illinois Anti-Bork Coalition (ABC), complete with Bork cartoonized as a judicial sorcerer with his two “right” hands palms out and raised above kindergarten-style ABC blocks. The subhead reads, “Reagan’s Supreme Court nominee may be the only man alive who can unite the diverse factions of the Democratic party in Illinois.” Well, does that mean that both Senator Dixon and Senator Simon will vote against confirmation?
Both articles use the term, “mainstream”: Fuller says Bork is “well within the mainstream of American jurisprudence,” while ABC, with some reservations, welcomes the 1984 “mainstreaming” of Bork’s First Amendment focus. In 1987, talk about the “mainstream” ignores Bork’s entire career throughout which he has missed few opportunities to denounce the federal courts. For example, he called Roe v. Wade, the 1973 decision limiting state criminal laws against abortion, “an unconstitutional decision” and a “judicial usurpation of state legislative authority” in testimony before a Senate subcommittee in June 1981. Does anyone doubt that a Justice Bork, given the chance, would vote to recriminalize abortion?
An unmentionable in the current debate seems to be Bork’s role in firing Watergate Special Prosecutor Archibald Cox–the so-called “Saturday Night Massacre” of October 1973. Conventional thinking is that Bork had to carry out President Nixon’s order after the Attorney General and his deputy departed. Someone had to do the deed and keep the Department of Justice intact. That burden fell on then third-ranking Solicitor General Bork. So far, so good. But, three days after firing Cox, Bork issued an order abolishing the Office of Watergate Special Prosecutor and tried to make his action retroactive (38 Federal Register 29466). Less than three weeks later, after the “firestorm” of criticism against the firing, Acting Attorney General Bork issued an order reinstating the office, and Leon Jaworski was appointed the new special prosecutor. The next week, a federal court in Washington held that Bork’s actions were illegal (Nader v. Bork, 366 F. Supp. 104 [November 14, 1973]). “Mainstream” Bork claims that immediately after firing Cox he pressed on with the investigation of Nixon. Will the senators in the new confirmation hearings question him on this unmentionable subject? Will they probe him about his views on the constitutionality of a prosecutor who is independent of the executive branch? After all, the first special prosecutor statute was enacted after the “Saturday Night Massacre.” Will they ask him about his extreme deference to the executive branch? With so many administration scandals, including the unfolding Iran-contra affair, one can hardly argue against the need for an independent prosecutor. The lower federal courts have upheld the constitutionality of the special prosecutor statute. If Bork reaches the Supreme Court, there will be no “firestorm” to persuade him to change his mind on this and many other issues.
What is Bork’s approach to deciding cases? Is it within the “mainstream” of jurisprudence? The answer to the latter question is obviously no. That’s why Reagan nominated him. For the former question, one must start with his writings on the law. For example, as “People v. Bork” pointed out, in 1963, he opposed the civil rights acts because prohibiting people who own restaurants and hotels from discriminating against blacks would infringe their rights to liberty. In 1973, “mainstream” Bork, during his confirmation hearings for Solicitor General, said he then approved the civil rights acts. In an article in the fall of 1971 in the Indiana Law Journal, Bork wrote about his “theory” of constitutional decision making, stating, “There is no principled way to decide that one man’s gratifications are more deserving than another’s or that one form of gratification is more worthy than another.” He went on, reasoning that since in most cases the Court cannot make these distinctions, the “only course . . . is to let the majority have its way.”
Will Bork on the Supreme Court just throw up his hands in most cases and go along with governmental regulation? What happened to the Declaration of Independence, which speaks so eloquently about “certain unalienable rights”? What happened to the Constitution with its protections against majoritarian abuses? What happened to the Bill of Rights? What happened to the post-Civil War 14th Amendment, which extended the Bill of Rights, as well as due process and equal protection to citizens, of all states?
Will the Senate Judiciary Committee do its homework and find out Bork’s approach to jurisprudence? Or will it again accept him as a “mainstreamer” and let him transform his “theories” into the Law of the Land? That’s what the fight is about.
Edwin R. McCullough