Not since “Impeach Earl Warren” billboards littered the landscape have so many people worked themselves into such an uproar over one judge.
But if President Reagan hadn’t set out to pick a fight with the Democratic-controlled Senate and large portions of the electorate, he would never have nominated Judge Robert Bork to fill Justice Lewis Powell’s vacancy on the United States Supreme Court.
Powell was a moderate conservative and the swing vote in many key 5-4 decisions, sometimes siding with the liberals, sometimes with the conservatives. Bork, too, would be a “swing” vote, but of a very different kind: his across-the-board conservatism would swing the balance of the Supreme Court–and thus the meaning of the Constitution in our time–to the hard right.
As a result, Bork has become an exemplar of the maxim that you can (sometimes) tell a man by his enemies. When an Illinois Anti-Bork Coalition (ABC) was announced here last month, the participating organizations truly represented the ABC’s of the traditional Democratic constituencies: labor, minorities, and women.
Liberal labor was there: auto, textile, and food and commercial workers, along with unionized government employees and the machinists.
Racial, ethnic, and religious minorities were represented by the Chicago Urban League, Operation PUSH, the Chicago NAACP, the Latino Institute, the American Jewish Congress, Chicago Catholic Women, and the Japanese American Citizens League, among others.
And women’s groups were there in force: the Illinois and Chicago NOW chapters, the Illinois Women’s Agenda, the Illinois Women’s Political Caucus, and the Illinois Division of the American Association of University Women, to name a few.
Joining the coalition’s inaugural press conference, State Representative Ellis Levin suggested that Bork is unique “in that he is probably the only person who could unite the diverse factions of the Democratic party in Illinois.” Bork may fall short of that heroic height–a resolution against him, sponsored by Alderman Raymond Figueroa, recently passed in the City Council by only a 26-12 vote. Still, his nomination is unlikely to win much local support outside the Republican party and the editorial pages of the Chicago Tribune.
ABC’s plan of attack was announced at its first rally, held last week at the Bismarck Hotel, by Bob Creamer, executive director of the Illinois Public Action Council: ABC will sponsor petition drives, signature ads in major newspapers around the state, public forums, and grass-roots lobbying of Illinois senators Paul Simon and Alan Dixon and Senate Judiciary Committee chairman (and Democratic presidential candidate) Joseph Biden.
Neither Illinois senator is yet committed, although Simon is leaning against confirmation of Bork. Both Simon and Dixon say they are waiting for the Senate hearings on Bork, scheduled to begin in mid-September. If they then choose to oppose Bork, that alone will not be enough, in ABC’s view. Creamer made clear that ABC will also press them to join a filibuster, in case one is needed to forestall a favorable floor vote.
ABC’s determination is understandable. Its inaugural press conference produced a sort of contest to predict how far a Justice Bork would turn back the constitutional clock. The bidding was opened by Andy Schleifer, president of the Illinois Women’s Agenda, a coalition representing over 80,000 members. Bork, she warned, would roll back the advances of the last 20 years, the period including most major decisions guaranteeing equal rights for women and the right of sexual privacy.
Ellis Levin outdid her. He predicted that Bork would turn the clock back to 1931–before FDR and the development of almost all our modern constitutional law on civil rights and civil liberties.
Mary Rita Luecke, president of the Chicago chapter of the National Lawyers Guild, added that Bork “would reverse decades of progress” in human rights.
But the hands-down winner was John Rossen of the Patriotic Majority, a new Chicago-based national organization that hopes to reclaim the American flag for progressive values. Because Bork professes to believe in enforcing the “original intent” of the Constitution’s drafters, rather than treating the Constitution as a living document designed by its authors for changing times, Rossen argued, Bork’s confirmation would set the country back more than 200 years.
Hyperbole aside, Bork plainly believes that the modern Supreme Court has plunged ahead of the Constitution. For example, at various times Bork has assailed, for lack of any constitutional basis, the Court’s decision striking down the poll taxes once used to keep poor southern blacks from voting; its reapportionment decision mandating “one person, one vote”; its right-of-privacy decision invalidating laws prohibiting use of contraceptives even by married people in their own homes; and, of course, the 1973 Roe v. Wade decision establishing women’s right to abortions. In general, Bork believes the courts have gone much too far in acting as checks on other branches of government, not merely in their rulings but even in their openness to hear many cases. Since 1981 Bork has been a federal appellate judge in the District of Columbia; a 1986 Miami Law Review article reported that of 11 cases involving citizen access to the courts to challenge alleged government abuses, Bork voted to deny access in 10.
In at least two areas, however, Bork’s current vision of the founders’ “original intent” is not what it once was. In a 1963 New Republic article, Bork opposed the “public accommodations” section of what became the Civil Rights Act of 1964, which required desegregation of such facilities as restaurants, hotels, and bus terminals. It was improper, he later wrote, for government to “coerce one man to associate with another” by granting blacks the right to sit at the same lunch counters as whites.
To his credit, Bork abandoned that view in the 1973 Senate confirmation hearings on his nomination to become President Nixon’s solicitor general. But this change in his bottom-line opinion does not necessarily erase basic questions about his judgment on constitutional values that his earlier views had raised.
The same may be said of the change in his thinking about the “original intent” of constitutional free speech. In 1971 Bork wrote that only “explicitly political” speech is protected by the First Amendment. By 1984 his vision had expanded to include “many other forms of discourse, such as moral and scientific debate.” While this mainstreaming of his First Amendment focus is welcome, such dizzying flip-flops by a presumably mature scholar hardly instill confidence in the soundness of his constitutional judgment.
Given his record, at his forthcoming confirmation hearings Bork will be damned if he does and damned if he doesn’t. If he adheres to his many remaining extremist views, he may be seen as too far off the right-wing fringe to win confirmation. On the other hand, if he abandons those views, too, one may question whether he is more suited for a law school refresher course than for the highest court in the land.
Bork’s supporters will argue–indeed, they have already begun to–that a judicial nominee’s ideology is irrelevant, and that he must be evaluated solely on the basis of legal ability, experience, integrity, and other politically neutral criteria. That is normally a good rule for lower-court judges. But, as Harvard constitutional law expert Laurence Tribe argues in his book God Save This Honorable Court, it reflects neither the “original intent” nor the historical practice of the Senate in passing upon Supreme Court nominees. The Senate was intended to have an equal role with the president in selecting the heads of the third branch of government. In fact, throughout our history, the Senate has rejected about one nominee in five, with the candidate’s views or constitutional ideology often playing a role, sometimes decisively.
As University of Chicago Law School professor and conservative legal scholar Philip Kurland recently told the Washington Post, “It is not any more unfair for the Senate to have ideological grounds to oppose a nominee than for the president to nominate someone on those grounds.”
That Reagan nominated Bork for ideological reasons is beyond dispute. And for Reagan’s purpose–to swing the Court to the right–Bork is a good nominee. Even in cases where his views are not so extreme or inconsistent as those noted above, he is so predictably conservative on nearly all issues that he would tilt the Court’s present variable balance solidly to the right.
His leaning is illustrated by one case in which I must confess personal involvement. Several years ago a number of journalists, members of Congress, and lawyers, including myself, invited Nicaraguan cabinet minister Tomas Borge to visit the United States to explain firsthand the Sandinista point of view. When the White House denied Mr. Borge a visa, we filed suit challenging the denial as a violation of our First Amendment rights and of U.S. laws enacted in the late 1970s to implement the Helsinki accords guaranteeing international freedom of travel. When the case reached the Court of Appeals (it is now pending before the U.S. Supreme Court), two liberal judges upheld our claim in part, but Judge Bork dissented, protesting “judicial incursion into the United States’ conduct of its foreign affairs.” In cases like this, his views are similar to those of other conservative judges, and he might not have been objectionable two or three appointments ago. But given the Court’s present balance, his vote could be just enough to make the difference in too many close cases.
As University of Chicago law professor David Strauss recently wrote in the Tribune, what we have in Bork’s nomination “is a group of rather extreme conservatives hoping to take advantage of President Reagan’s last years in office to impose their agenda on the federal judiciary. There is no reason why the Senate has to sit still for that.”
Art accompanying story in printed newspaper (not available in this archive): illustration/Kurt Mitchell.