The Watcher Cat

The Watcher Cat

Thursday, December 20, 2012

Bork: Printing the Legend, Forgetting the Facts

Now, I don't mean to be uncivil, but the death of Robert Bork has proven to be yet one more opportunity for people who know better to spout arrant nonsense about his failed nomination:
There were many legitimate ways to discuss and criticize Bork's radical judicial philosophy, but the demagoguery deployed against him was a smear campaign of almost unprecedented ferocity. Ted Kennedy was among the crudest. (Wally Olson has a fascinating column on how Bork was also borked for not being a religious man.) The consequences are still with us, along with the deep polarization that event intensified in Washington. Reagan need not have nominated Bork, of course - and he deserves some of the blame for such a radical move. But the smear campaign from Bork's opponents dwarfed everything else, in my view. It helped create the poisonous atmosphere we now live in. Because it worked.
I like Sullivan, except when he dons rose-colored lenses to wax warm and runny about 80s conservatism, but this is just laughable.

Do you know what makes the difference between the "Republican Nihilsm" chronicled in a series of posts by Sullivan and the critique of Bork? The critiques on Bork were, quite simply, true.

Sullivan picks Ted Kennedy's famous denunciation of Bork as "among the crudest," so let's take that as our sample. Here's the video:

The text:
"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids.
Let's do them in order:

1. Women Forced Into Back-Alley Abortions?

At the time, On abortion "Bork had said that the 1973 Roe v. Wade decision which legalized abortion nationwide was 'an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority.'" Now, to be fair, Bork's opposition to Roe was less emotive prior to his failed nomination than it was ; still, this charge of Kennedy's accurately reflects the consequences of Bork's views as of 1987, and the substance of his views thereafter.

2. Blacks Would Sit at Segregated Lunch Counters?

Bork didn't just oppose the Civil Rights Act; in 1963, while the Act was up for debate, he published an article in which he acknowledged that racial discrimination was "ugly", but termed the use of law to prohibit discrimination by private entities dealing with the general public "a principle of unsurpassed ugliness." Far uglier, in context, than the racial discrimination of Jim Crow. Kennedy wins this round, hands down.

3. Rogue Police at the Door?

Bork disbelieved in the rationales underlying the exclusionary rule, finding neither the deterrence argument nor the argument that the courts should refuse countenance breaches of the law by the State argument supporting it credible. It is also true that he never provided, so far as I am aware, an alternative means of enforcing the Fourth Amendment. So, Kennedy wasn't wrong; the law as Bork would interpret it, provided no recourse for those whose rights had been violated, and no negative incentive to prevent police from violating those rights. Bork's defenders mostly claim that he didn't approve of that consequence, but that it flowed from his understanding of teh Constitution. While there was in 1987 at least one anecdote that Bork tried as a prosecutor to obey the Fourth Amendment, the fear that as a judge, that understanding would have gutted enforceability of the Amendment seems well founded.

So what Sullivan is taking umbrage is not the gravamen of Kennedy's charge, but its tone.

I should add that my primary reasoning against Bork at the time of his nomination was his subjective approach to the Constitution--how his private, amateur historian's interpretation of the Framers' intent allowed him to constrict or even remove the very texts he was engaged in construing. As I wrote Five years ago:
Bork was rejected--to my mind quite rightly--because of his philosophy. Not because he was conservative--William H. Rehnquist had just been elevated to Chief Justice, after all--but because his conservatism led him to discard whole sections of the Constitution based on his personal ideological committments.

So, for example, Judge Bork contended that the Ninth Amendment, reading that the "enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" could not be a source of rights which were enforceable, and that only those explicitly enumerated in the text could be. He described its meaning in The Tempting of America, as indeterminate as an "ink blot", and claimed that the judiciary should simply ignore the Amendment, which would give effect to the intention of the Framers. As Bork himself said, "the only recourse for a judge is to refrain from inventing meanings and ignore the provision, as was the practice until recently." (“Interpretation of the Constitution,” 1984 Justice Lester W. Roth Lecture, University of So. California, October 25, 1984).

However, the Framers had originally not included a Bill of Rights because, as recounted in The Federalist Papers, the enumeration of rights might be used as a means to claim that those not named did not exist. Federalist No. 84. Madison addressed this issue in explaining his addition of the text that became the Ninth Amendment:

It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution." (3 Annals of America at 354-363).

So the text of the Constitution, and Bork's own claimed ultimate goal of interpretation--effecting the actual original intent of the framers--both demonstrably preclude his reading of the Ninth Amendment out of the Constitution. Nevertheless, for his own policy-based reasons, Bork argues for such a reading-out. As an equation, if T means text, for Bork T=0, absent any reference to original intent, structure, or any other ground.

Similarly, with the First Amendment, Bork argued that the scope of speech protected by the First Amendment should be limited to purely political speech, despite the text of the Amendment which carries no such limitation, providing only that "Congress shall make no law ....abridging the freedom of speech." (Bork's article, "Neutral Principles and Some First Amendment Problems" is published at 47 Indiana L.J. 1 (1971). Again, Bork's resort to the intention of the Framers over the text was unconvincing to the say the least. Because of the lateness of the addition to the Bill of Rights to the Constitution, there are very limited legislative history materials to use in interpreting the text, but neither Madison's notes, nor those of the other members of the Constitutional Convention support Bork's reading of the Amendment. Nor does the early practice; the Supreme Court in Permoli v. First Municipality, City of New Orleans, 44 U.S. 589 (1844) and United States v. Cruikshank, 92 U.S. 542 (1875) twice held that the effect of the First Amendment was to completely disable Congress in dealing with regulation of speech and religion. (For more detail, see my First Amendment, First Principles at pp. 20-23).
Bork was a major player in the culture wars over the Constitution, and his influence shaped a generation of American conservatism. The Right understandably grieves his loss, as, no doubt, do his family and friends. I grudge them none of this. But I do grudge those defenders of Judge Bork's nomination their skewing of the facts, and their printing, absent historical warrant, the legend that Bork was "borked."

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