Slouching, Still: Judge Bork unrocks
"Slouching, Still: Judge Bork unrocks" We couldn't think of two better fire-breathers to talk about racketeering courts, the perils of an overtaxed, over-regulated economy and the perennial biggest question of all: Is...
...Given the original meaning of the First Amendment, that's ridiculous...
...Nine of them are bringing their own antitrust suit...
...Then we have things like Enron and so forth, which are shaking people's faith in capitalism...
...And now they ban the Pledge of Allegiance...
...And now we're facing a real danger from the possibility of manipulating human nature through genetic engineering or cloning...
...And, indeed, Netscape immediately dropped out of sight in sales...
...In the industry, they keep calling it "pushing the envelope...
...Conventional jurists need not apply...
...As a practical matter, people who push porn on the Net should be arrested just like any flasher on the street or any-body who put a porny billboard by the highway...
...RHB It's good to hear that technology will let us prevent porn from being thrust upon people who don't want it...
...They should have said, "Anything that you like is protected" GG I think the practical problem of porn on the Net is that it's constantly being pushed in your face...
...Look at the community colleges and technology courses that are proliferating all over the place and Internet education—the University of Phoenix, An institution like Harvard is worthless now...
...BNB Roman circuses didn't create wealth...
...For that reason, they lost...
...RHB I'm not too happy about pushing it on adults...
...RHB The plaintiffs' tort bar knows no limits...
...Scalia and I disagree about what the courts can legitimately do...
...The plain-tiffs' bar pours enormous amounts of money into campaigns for state legislators and anywhere judges are elected.You get horrendous results...
...GC Yet this is a point on which conservative and liberal extremes converge...
...GO o se emet strater;,v was 1, orkec climaxed by acquire first the MCI Internet network and then Sprint's Inter-net network...
...And they feed on this...
...I mean, my view is that people who actually accomplish things in the world observe the same general principles that they did 50 years ago or 100 years ago...
...The same sort of development has occurred with punitive damages...
...Netscape would have done it in the other direction...
...They control Hollywood...
...We've had class actions for a long time, and we've had punitive damages ever since the beginning of the republic...
...RHB I hope you're right, but I don't think I'd claim things are any better than when I wrote Slouching Toward Gomntorah...
...RHB Conservative judges are partly to blame...
...BB Everything comes out of nowhere, I mean, synthetic child porn comes out of nowhere...
...GG Not only that, by prohibiting rich citizens with a variety of interests from contributing, they increase the importance of political action committees, most of which are monomaniacaily devoted to securing subsidies for ethanol or extending textile protections or...
...The optical illusion of decadence is created by the dominance of the intelligentsia...
...That doesn't mean we should not be alert to see that government does not go unnecessarily far...
...Now that's pure politics...
...In the circles I live, there's a growing move toward home schooling...
...They get up at award ceremonies and praise them-selves for their courage...
...When damage suits evolve so that they are a threat to interstate commerce, the Court should recognize that fact...
...RHB That's what Daniel Bell called "the cultural contradictions of capitalism...
...I remember reading a British newspaper in which a columnist asked why anybody would choose to become a policeman and there-by "cut himself off from his common humanity" The hero-ism of the police and firemen on September 11 changed some minds about that, but apparently not in Europe where crime is now soaring and the police don't respond with vigor.We still have some of that problem here because the police are routinely accused of brutality and racism, so that law enforcement suffers...
...They don't even have children...
...What I don't agree with is that every idea deserves to be on the market...
...And more immediately, those attitudes are powerful because justices want their clerks to like them...
...The fact is the punitive damages they knew were nothing like what punitive damages have become...
...They want university and law school faculties to like them...
...GC You're talking about the recent ruling that child porn is fine as long as it's simulated—no actual children are involved...
...A certain proportion of the population can pur"Ivy League colleges don't make very important contributions to the American economy anymore...
...Of course, it can't work if the system is actually governed by daily public opinion polls, which are almost a completely spurious technology...
...Since then, the court has gotten much better at antitrust...
...RHB It doesn't necessarily affect the culture...
...GG OK, but now along come the states...
...If a legal doctrine or a legal weapon changes—as punitive damages surely have—they ought to be able to say, "This is not what the people who wrote the Constitution knew about and therefore people are being denied due process of law by runaway damage awards...
...But they could not point to any efficiency—the tactic apparently had no advantage technologically or any other way, except to crush Netscape...
...In the Microsoft case, the lawsuit by the states serves a valuable function—precisely because the federal government has surrendered what it properly won...
...RHBYes, but there's something besides the economy out there—the politicians, writers and professors are affecting what people believe...
...Capitalism and entrepreneurial endeavors may be creating wealth, but that doesn't necessarily mean that the culture is going to be healthy...
...the only true democracy, according to them, is a tyranny of liberal judges...
...And not just in this country...
...RHB They aren't even there...
...Has it done anything good...
...The politicians who appoint them receive money from lawyers...
...CC Why...
...In fact, the culture has been going downhill since the 1950s...
...GG And meanwhile we're gagging political speech with campaign finance reform...
...I do want them regulating some of the uses to which technology is put...
...Does the commerce clause have any meaning at all...
...It has no relation to a blastocyte...
...It's quite possible, though not inevitable, that this culture, as we've known it, the culture of the 1950s, is doomed...
...For one thing, the Supreme Court has refused to limit punitive damages, which some juries award in monstrous and unjustified amounts...
...It's going to hap-pen...
...And for that matter, how can you justify having a communications commission in Mississippi making decisions that apply to the whole global Internet...
...But on the other hand, there are a lot of positive, social indices...
...The thing now is to watch Bloomberg and see if New York goes back down the hill...
...That's not a wild overstatement...
...Porn should be encrypted and relegated to some triple-X domain...
...They couldn't...
...They're going to go after guns...
...This seems to be well on its way to being blocked, on the grounds that these two companies will gain a monopoly on satellite delivery of information—as if that means anything any more...
...And then you have the plaintiffs' JULY/AUGUST 2002 • THE AMERICAN SPECTATOR 39 bar, which is almost pure loss to the economy and to people in general...
...GG How about this insanity of Mississippi or California taking actions that affect the whole global telecom system, or the use of a life-saving material such as asbestos or a life-saving pesticide such as DDT...
...In antitrust cases, you always get some internal correspondence that says "We're going to crush these guys" or "We're going to do this, that and the other thing...
...Attacking the integration of the browser with the operating system opens the door to requiring companies to separate all kinds of things...
...GC So as long as conservatives are passive and 'literals are agclressive there's a ratchet effect through precedent, You ea, ' get any good out of the RHB It'll take a tough guy to go in and say, "Roe ir...
...They did it by incorporating a browser into their operating system...
...Contrary to the left's claims, right now we have—and for the past 50 years, we have had—a liberal Supreme Court...
...Their kids all become lawyers and left politicians and socialist professors and nihilist writers...
...RHB There are rights to particular aspects of privacy...
...RHB The plaintiffs' bar does not control the Supreme Court, but the kind of wooden interpretation of the Constitution that I just described, does...
...They could not accept the idea that the Court might stay within its proper limits and give democracy greater freedom to govern...
...He can look at what-ever he wants to...
...Of course that overlooks, among other things, the role of unions...
...GG Don't ',uu think the culture of the 1950s was a kind of special phenomenon, shape, wars...
...And then there's abortion they won't touch it.The Supreme Court has become arguably the most important institution in domestic affairs, certainly in cultural affairs, and that news is not good...
...It's amazing...
...Compared with these dangers, the restrictions on our liberties or on our privacy are trivial...
...But they've gotten to the point now where any touch of religion is suppressed, where the state itself has become an anti-religious establishment...
...If they could hit 20 cities simultaneously, civilization would damn near be gone in this country...
...That is why the nomination of judicial conservatives—men and women who would interpret the Constitution as it was originally designed—is anathema to left liberals like Senators [Pat] Leahy and [Edward] Kennedy...
...And as the central processor becomes more and more capable, and extends to more and more functions, it naturally requires an operating system that does the same...
...Hide is wrong...
...The extension of the operating system monopoly to the browser was, I think, the crux of the illegality...
...RHB In a Missouri case, Breyer spoke of it as the "equalization" or the "democratization" of campaign finance...
...I can't think of a single ACLU victory during the Warren court years and the Burger years that has been reversed by later courts...
...Is it a "right...
...I think that's wrong...
...For example, electronic surveillance, which the Founders knew nothing of, has been brought within the protections of the Fourth Amendment...
...RHBYes, the jury is still out on that one...
...GG No, it doesn't, but it's part of the culture, and it is healthy...
...RHB Isn't there some way to stop that...
...Obviously the Internet is one of the places where this stuff is going to be prevalent...
...It's not discourse—it's glandular manipulation...
...And people just keep breaking down barriers...
...GO Well, it is the culture, It's a culture of people who pretty much shun the slide to Gommorah, and who work 30 per-cent more hours than anybody in Europe does, and who are amazingly creative and ambitious...
...If Congress is really worried about corruption—rather than about protecting incumbents—it could require that within two weeks or 30 days, any contribution must be listed on the Internet, on a web-site that everybody has access to, so that people know who gave how much money to whom...
...RHB The First Amendment prohibits the establishment of religion...
...Microsoft is free to do precisely the same thing they did before...
...In statutory law, if a judge gets it wrong, Congress can correct him...
...When they come out, they're still the bright36 THE AMERICAN SPECTATOR JULY/AUGUST 2002 est kids, but there's been no value added...
...As Bob Tyrrell recently pointed out in "The Continuing Crisis," all of a sudden people—made entirely of chemicals—are terrified by olio...
...One is Microsoft—though now the government, for reasons I can only guess at, is giving away what they won.The other was against Visa and MasterCard, who were threatening that any bank that dealt with "In antitrust cases, you always get some internal correspondence that says 'We're going to crush these guys.' That's effectively meaningless...
...In various statutes, we have all kinds of rights to privacy...
...George Gilder never slouches any-where...
...34 THE AMERICAN SPECTATOR • JULY/AUGUST 2002 these devices rY r t ˆ=,cEude a breast cancer site or a Mapplethorpe montage, Lord forbid, or some artistic work of eros, or Romeo and Juliet...
...He can do what he wants to in his home...
...We've got it wrong all this time...
...The feminist movement still intimidates officials in ways that are destructive of family, hostile to masculinity, damaging to the military, and disastrous for much education...
...They're creating businesses at a great pace and actually contributing to the economy and advancing the country's interests...
...We may have to give up some of our privacy and other things and have identification cards and so forth...
...Are these just creative lawyers figuring out new ways to exploit old laws, or was there a short circuit at some point...
...But at the same time, what the left calls "social change" is mostly just social degeneration, The human genome has not changed in millennia The general problems of human social organization have not changed and the principles that are suitable for organizing civilization did not change...
...What sort of lessons should we learn from this experience that are applicable to general policy...
...in the stem-cell debate, it seemed to me conservatives just intuitively objected to all sorts of procedures that may actually have a legitimate link to medical advance, and which don't necessarily embark on a slippery slope...
...Gene McCarthy could not have mounted his primary campaign against Lyndon Johnson under the current rules...
...They are expressing an attitude about life...
...But the courts recently overruled even filters in public libraries on the ridiculous grounds that "The Supreme Court is incredibly hostile to religion—almost every time they get their hands on religious expression, they rule it out...
...GG I don't know about Visa and American Express, but the Microsoft case was full of silly claims, such as the idea that the browser is intrinsically a separate entity that shouldn't be integrated with the operating system...
...A court of appeals held that not only was the superintendent of schools allowed to forbid him to read the Bible—he was under a constitutional obligation to stop the teacher from doing it, because some student might find out what he was reading and some-how be impressed or influenced by it...
...CC They just won't do it, will they...
...Antitrust law has already wreaked havoc in the U.S...
...GO There's lots of resistance...
...Sure, there are stretches of our society that have been crippled...
...CC That's why prevailing conservative jurisprudence is a disease...
...The deciding input in most public opinion polls are The -they ask it...
...They control the newspapers...
...The effect on the public of watching it, or those people who want to watch it, is both coarsening and dangerous...
...We may be beyond the point of which censorship can do much good, except maybe keep things from getting much worse...
...But if you or I tried to take out a single ad doing the same thing close to an election, we'd be in danger of a jail sentence...
...RHB State actions are another example of the politicization started by the Warren court...
...Maybe if we hadn't had the Depression and World War II, maybe the 1920s would have brought us further along the road of decadence than we are now...
...As Walter Lippmann pointed out 70 years ago, public opinion is mostly a pnrantom...
...But bundling it all together—the inexorable onrush of technology with the optional downrush to Gommorah—is a fundamental error that serves the advocates of government regulation of technology, RHB You're right about that...
...Some people say Felix Frankfurter, but the truth is he stayed where he was as the court went left...
...RHB Good point...
...It's the logical thing to do...
...They will try anything...
...It's always been true that when kids go into a major university, they shift left very quickly...
...GG The idea of "nevi kinds of human beings" is like pornoptaphy--vou`ii know it when you see it, and we're not there yet, I'm inclined to be permissive until the point is clearly transgressed---then the offending behavior can be banned...
...RHB Yes, but they're not always conservative...
...I'm afraid we're going to have to live in ways that we didn't like in the past...
...Somebody at The New York Times can write, day after day after day, a column favoring a certain candidate...
...GG That's what I mean when 1 say that the slide to Gommorah is largely an optical illusion created by a dying broadcast media as they slide toward irrelevance, Soon no one will watch the ads that finance them...
...They don't advance enterprise...
...But libertarianism seems to be so entrenched now that it may be too late to censor anything...
...Look at the use of vile language on television now—one character recently used the "F word" thirty times in thirty minutes...
...The Supreme Court ruled, "Oh, the home is sacred...
...RHB The crime rate has leveled off, but it's still miles ahead of where it was in 1960...
...Many of them are becoming far richer in financial terms than most college professors and journalists...
...RHB The trends are running both ways...
...But all across the country you can find local expressions of culture and religious faith that defy the rule of the elites...
...Plus the inner-city catastrophe, which is the ultimate failure of the welfare state, where liberals addressed all their moral energies and all their resources and creativity and ended up enacting a wasteland...
...But that is not usually the case with state antitrust enforcement...
...That's what Israel has done, and it's what we are doing.The dismaying thing is how many of our intellectuals and politicians say we're to blame, or that we're equally to blame...
...As a matter of fact, I'm sure they won't...
...The advance of pattern recognition tools is inexorable, which means digital pattern recognizers with analog sensors are increasingly capable of identifying offensive material and catching the vast bulk of it...
...If I had to design the system, I would say only the federal government may bring an antitrust case...
...Well, the intellectuals didn't make Madonna a multimillionaire...
...It's amazing that we incapacitate our FBI and CIA to the point that they are ineffectual, and then try to incapacitate the Israelis as well...
...GG So "judicial restraint" translates as capitulation...
...Perfectionism leads conservatives, for example, to under-estimate the significance of the move toward capitalism in China and to exaggerate the significance of China's repression, which is still serious but not remotely comparable to the repression under Mao, when it was seen as somehow enlightened to open up to China...
...I remember debating the head of the ACLU a while back, and I said the Supreme Court shouldn't block communities from trying to safeguard their moral and aesthetic environment by controlling obscenity and pornography...
...GB But the Ivy League colleges don't make very important contributions to the American economy anymore...
...CC Doesn't someone like Scalia understand this...
...GG Al Gore plus Nader won by a big margin—that's something I we should remember...
...The danger for capitalism is always that they'll regulate it to death, not that they'll nationalize industries...
...Many of them believe in Marxism and astrology and sexual liberation and become miserable, poor and divorced within a generation...
...As a passionate advocate of the Internet and freedom in general, I resent the fact that I have to spend 10 minutes every day just eliminating all this crap from my e-mail files...
...RHB The popular arts have gotten much worse everywhere—rap music, motion pictures made for the immature, television vulgarity and so forth...
...Once you remove the restraints, Middle America is capable of slowly being corrupted...
...RHB The thought that a computer's rendering of child pornography is all right, because no actual child is involved, is ludicrous...
...RHB Scalia, for example, says, "Well, they knew about punitive damages back when they wrote the Constitution and therefore they cannot have intended to limit them, or outlaw them...
...Yet such appointees have given us the fictitious abortion "right," systematic hostility to religion, uncontrollable obscenity and pornography, unnecessary road-blocks to the prosecution and punishment of criminals and much more...
...Filtering would be something that could be accomplished rather readily...
...He called me a fascist...
...RHB I don't worry about the imminent loss of our civil liberties...
...My position was that the libel issue has changed its nature since the Founding, and libel litigation has begun to be a real threat to the freedoms of speech and of the press...
...38 THE AMERICAN SPECTATOR • JULY/AUGUST 2002 another card company would be cut off...
...RHB Maybe it was...
...The tort bar may control the state legislatures, the U.S...
...ROBERT BORK Absolutely—and there's a huge body of cases now that go the wrong way because of a misunderstanding of the role of precedent...
...RHB It's outrageous that we keep treating the Israelis as if they're morally equivalent to Arafat and the terrorists...
...Isn't regulating the courts what the Supreme Court is for...
...When you attack people directly, they tend to fight back...
...And it's the group that prevails in the media and the universities and in the established art institutions...
...When a technology changes, the Supreme Court is capable of saying, "OK, the old principle still applies...
...Iypicall down from a e SpectraVision reigns anti is mostly por-nourdpass newsstand in cci uch 50 percent of the rnagare porn, and then reach rditor'iurn to hear my cnent denounce porn on where it comprises far ess than one percent of the ob pages, I just want existing JULY/AUGUST 2002 • THE AMERICAN SPECTATOR 35 live, but where I live I don't hear that stuff at all...
...Instead of vanishing, he took up a perch as the conservative's conservative, capped in 1996 by his bestselling Slouching Toward Gonunorah, a scathing catalogue of liberalism and the decline of Western culture...
...But there is a degenerate class that hap-pens to dominate our intellectual life...
...They're all lawyers them-selves...
...They don't create wealth The, don't generate progress...
...Republicans keep appointing justices, and the leftward march of the judiciary continues unabated...
...The Constitution speaks of freedom from unreasonable searches and seizures, to take one example...
...Watching television is a deeply depressing experience for most intelligent people...
...The Senate Democrats want to politicize the judiciary and give it a strong leftward bias...
...The free market is a magnificent distributor of goods and services, and also of ideas...
...That's how the PC industry evolves, and yet somehow this process was supposed to be halted for this new entity, the browser, that was allegedly going to be autonomous...
...They're going to go after liquor...
...So American Express and Discover couldn't get banks to deal with them because no bank could afford to lose Visa and MasterCard...
...I would also bar private actions, which often are just somebody who's been beaten in straight-out competition and sues...
...That doesn't mean democracy is gone...
...It's overruled...
...40 THE AMERICAN SPECTATOR • JULY/AUGUST 2002 Students praying before a football game that nobody gets hurt—it was held to be unconstitutional...
...GG They're talking about going out and running...
...But the problem is societal...
...They can't contribute money, but they can send people door-to-door and also man telephone banks—these things are not prohibited...
...My question is, assume that there are situations that may be marginally damaging to consumers under some circumstances—does that justify creating an antitrust machinery that constantly intrudes into the marketplace in arbitrary and unreasonable ways...
...CC What went wrong here...
...Grave injustices are being done...
...We can do the same...
...That's a disaster, because those judges—who often comprise a majority of the court—have become an adversary to traditional American values...
...Well, I don't know where they in Arkansas ,nd Juliet if it That d~ esn't ban it for ever vorte else...
...RHBWe used to go around saying that the problem is all the intellectuals—the American people are fundamentally sound...
...That's a very dangerous line and we have to watch it closely GC I just would resist the siis_ pert' slope argument, which works the other stay, too--..-j;.r tifying egregious forms of pornography on the grounds event the vendors of i' r`' from dishoit ir'red!ts':1i shing their sir RHB I wasn't suggesting a special law for the Internet...
...Democracy is republican and hierarchical...
...We do have this astoundingly positive example of New York under Rudy Giuliani and some other cities recently...
...But it's not creating wealth, and so therefore it's ultimately self-destructive...
...A lot of these state laws about labeling, about asbestos and so forth are terrible...
...RHB . . . or protecting abortion or the plaintiffs' tort bar or what-ever else you like...
...But conservative justices don't do that often enough...
...Depending on where you look, you can find regression or you can find progress...
...RHB Absolutely...
...We still have a fighting chance to turn things around...
...But, oh no, the Warren court said—states can go right ahead and sue companies all they like...
...The fact that computer-generated pornography will probably trigger pedophilia by people who may be on the verge, and the fact that it lowers the moral tone of the society in general—those things apparently mean nothing...
...They go on repeating the error...
...But there s a real illusion about how societies ordinarily work and what their sources of renewal are, Mormons, evangelicals and conservative immigrants are taking over America...
...Or that you couldn't punish a couple of guys arranging a mob hit in private...
...Except on television...
...as a matter of constitutional law, the abortion right comes out of nowhere...
...Federal courts open every session with a marshal saying, "God save the United States and this honorable court...
...The principle was, if you have a monopoly and you employ a tactic that seriously damages or destroys potential competitors, you better be able to explain that you have a valid business reason, an efficiency reason, for what you did...
...In class actions, particularly, the lawyers often get rich and the nominal plaintiffs get next to nothing...
...Universities are in terrible shape...
...GO So much for democracy...
...Microchips, the heart of computing, get more and more capacious—it's called Moore's law...
...They were sympathetic to left-wing causes...
...With the new digital video recorders, they rarely even see an ad on TV...
...On the other hand, some cultures eventually die...
...It leads to a sense of depression about the future of the country that I don't think corresponds to what is actually happening out there...
...The Spectator's Editor at Large, he sat with Judge Bork at AEI's downtown Washington office for a freewheeling three-hour talk...
...CC .. and according to the Declaration of Independence, we're "endowed by the Creator" with inalienable rights...
...RHB He and I were on the Court of Appeals together...
...And I think that's a very important distinction to make, because this stuff is being pushed at children all across the country, all the time, day after day after day...
...The attack when GE wanted to acquire Honeywell—that was not comprehensible except as hostility to American companies...
...And, of course, a lot of people react to that...
...RHB But those church-goers aren't very powerful, given their numbers.And the intelligentsia is powerful, far beyond their numbers, because they control the hype of television...
...Meanwhile, the ideologues of the left keep spreading the lie that Republicans are trying to appoint right-wing zealots...
...Harvard may be worthless in a lot of senses, but the very brightest kids compete to get into Harvard, Yale, Princeton, Michigan, Stan-ford and so forth...
...GC A lot of that is people with-out kids having meaningless serial marriages...
...GG That's true—there's a negative undercurrent...
...To somebody in technology, for example, the decisions of the courts in the antitrust field seem almost incomprehensible...
...It's become an enormous burden on commerce and on business...
...Earl Warren, Thomas E. Brennan, Harry Blackmun, David Souter and others of similar stripe were appointed by Republicans...
...They bring these massive class actions, with triple damages, and yet the people supposedly being represented get almost nothing out of it—a few coupons to buy products in the future...
...RHB I agree with that...
...Meanwhile, evangelical churches all across the country are expanding and increasing their power...
...Now the Justice Department, perhaps on orders from the White House, has entered into a consent agreement that does not even mention what was held illegal...
...RHB I'm on record as thinking that the federal government has to interfere there, because we now have state laws that are interfering with interstate commerce...
...That's the form of inequality they find truly intolerable...
...Senate, the U.S...
...GG No, they destroyed it...
...They say, "Well, punitive damages were known at the time of the Founding Fathers, and therefore they're lawful...
...GG There's a spurious egalitarianism that assumes that because some majority of the American people are idiots, that democracy can't ,-work...
...CC They're going to go after food—McDonald's is killing people...
...But with Microsoft, the internal correspondence from Gates and from others said, "We have to link the browser and the operating system in order to prevent Netscape from gaining on us, from taking over the market...
...I thought the stem-cell issue made conservatives look foolish, A stern cell is not a human being...
...Well, that's fine...
...There was a moment that was embarrassing for the conservative cause, when after September 11, some right-wing Congressmen began ululating about national ID cards...
...Slouching, Still We couldn't think of two better fire-breathers to talk about racketeering courts, the perils of an overtaxed, over-regulated economy and the perennial biggest question of all: Is America, in Judge Bork's now-famous phrase, "slouching toward Gommorah...
...It makes no sense...
...They've just banned the Pledge of Allegiance in schools because it has the words "under God" in it...
...They said it explicitly—that in open competition on the merits, they couldn't beat Netscape, but that by tying it to the operating system, you could fix Netscape's wagon...
...What this does, obviously, is to shift power massively, not only toward incumbents but also toward journalists...
...Look at Israel—they have the tightest controls over a lot of things, but they're still a functioning democracy...
...As Spectator readers will know, Bork is the liberals' nightmare—ex-Marine, Richard Nixon's Solicitor General, scourge of abortion, pornography and gay rights, a Chicago-trained fierce advocate of free-market economics and (Hillary save us...
...That claim was central to the whole case against Microsoft, but it's just silly to anybody who sees how the industry evolves...
...They were initially poor, but with each generation they command more and more of the nation's wealth...
...No, they're not going to destroy capitalism...
...RHB We've always had contingency fees...
...In constitutional law, nobody can correct the Supreme Court except itself...
...Capitalism requires people who defer gratification, work hard and so forth...
...RHB There are two cases I can think of, both of which I was involved in...
...House of Representatives, but it does not visibly control the Supreme Court...
...The author of Telecosm, Life After Television, Wealth & Poverty and other books, George has manned the barricades in fights ranging from feminism and the welfare state to unshackling entrepreneurship and supply side economics...
...People who are far from rich can't even pool their money to buy a single ad countering the drumbeat of the liberal press...
...You can do with it what you want to...
...And the lawyers walk away with millions...
...1,o-it at RHB That's the trouble—the plaintiffs' tort bar has huge amounts of money, and many of them are interested in nothing but personal gain, but they talk the language of, "We mustn't let the giant corporations crush these little people...
...GG Back to slouching toward Gommorah...
...And we do have to fight it...
...RHO On the other hand, divorce and illegitimacy have skyrocketed, so it's not at all clear that just a healthy economy is enough to hold a society together...
...The Supreme Court is incredibly hostile to religion almost every time they get their hands on religious expression, they rule it out...
...As editor of the influential monthly Gilder Technology Report, George is both a visionrn leader America's technology ROBERT B O R K renaissance and a withering critic of the regulatory schemings that deny its full promise...
...RHB I think the way the universities go is likely to be the way the culture will go...
...RHO Well, that's the second point we refuted...
...JULY/AUGUST 2002 • THE AMERICAN SPECTATOR 37 ear..t~ r. _ o ; tion of other cultural channels of all sorts will allow the portions of the society that are creative and affirmative to go on to new triumphs...
...The fact is that the same people who are most avidly promoting social change want to stop technological change in its tracks, The greens, for example—environmentalists—are opposed to nearly any concerted technological change...
...RHB It's just preposterous...
...Moreover, I don't want special laws to control interne...
...So the racketeering continues...
...His position was that libel was known to the framers, and therefore we couldn't limit it in new ways...
...You should prosecute people who push unwanted porn into people's homes...
...But so far it hasn't, and I see no signs that it will...
...They want The FMIshington Post and The Neu) York Times to like them...
...RHB The left wing of the Democratic Party relies upon the fact that they can get courts to legislate much more liberal laws than they can get through Congress or state legislatures...
...RHB One reason all hell broke loose when I was nominated was that the left could see the court going 5-to-4 the other way...
...Liberal justices do...
...GG I think the key battle is over the regulation of the economy...
...GG Well, I don't think should prosecute peooi porn in their homes...
...I believe that in the end, we will have to depend on the Israelis to defend us at least as much as they depend on us to defend them...
...By which he meant that people with more money can't contribute more...
...RHB I don't think so...
...Well, that sounds like these e-mails...
...The most conservative churches are growing the fastest...
...WorldCom came from nothing to challenge all the other phone companies, and it was repressed not by the competitive success of other phone companies, but by antitrust action...
...The Supreme Court ruled against one merger, for example, because the smaller company would have benefited from using a larger company's distribution system, and thus would have gained an illegal competitive advantage...
...It's push-porn—people are permitted to "flash" at you and leave whenever they want...
...RHBYes, I don't know why they use the word "speech...
...Is that true...
...At the same time, the court is extraordinarily permissive toward what it calls "free speech," although what they call "free speech" is often nothing more than pictures of people doing unmentionable things...
...When something changes so profoundly, and becomes a threat, then you ought to be able to say, "OK, the Founders didn't foresee this they were dealing with a different animal...
...But it's hard to think of an institution on what we might call "our side" that is healthy—a few think tanks, a few denominational colleges here and there, a few publications...
...CC Judicial racketeering—where's our activist Supreme Court...
...The ideal of perfect free markets has become a pretext for socializing them, RHB In Europe, I think a large part of it's simply anti-Americanism...
...The people who pro-duce that stuff say it's necessary to be authentic, that they're just reproducing what life is like...
...The fact Bill Clinton was elected twice and that Al Gore won the popular vote is deeply depressing...
...The Supreme Court invokes this spurious, undefined right when it amends the Constitution to fit the personal philosophies of a majority of justices...
...We need to remember that the Founders left room for the states to do certain things, but they also built a strong central government...
...Then, no matter what you did, if a business achieved efficiency, it was regarded as anti-competitive...
...I don't know why we don't let the Israelis fight it...
...I don't want people designing their own children...
...That's the ultimate example of the corruption of so many of our ruling elites...
...There's a ruling against Georgia in a case in which a man was arrested for having pornographic materials in his home...
...The only thing I would disagree with is the implication that only the wealthy are affected.You don't have to be rich—the limits are so low that a person like me can be inhibited...
...GC ' RHB Ultimately, it conies from intellectual class attitudes which many justices share...
...Really, I see very little there that's worth preserving...
...But in large part it's judges who are to blame, for failing to control some of the worst abuses...
...But you have to ask now, "Which institutions are healthy...
...I don't care what you think about abortion...
...And therefore they decided to crush it...
...But just as we won't let crack cocaine onto the market, we ought not to let things like child pornography or calls for violence or law violation onto the market...
...GC It's not impossible...
...The forces of regeneration are very powerful...
...GG How in the world can this stuff fly with the courts...
...GC The positive side is that the attack on crime, if it's aggressively pursued, is incredibly effective...
...RHBYou're expressing exactly the viewpoint I argued against in that case—I worked first for Netscape and then for a coalition of companies, including IBM, Sun Microsystems and so forth...
...If people want it, I don't think the Supreme Court will allow you to censor it...
...and now is emerging powerfully in Europe, which is taking inspiration from America and making ever more aggressive claims of the right to invade, "discover" and harass every business for allegedly anti-market activities...
...If you want to have an incredible outpouring of porn through the Inter-net, you have the Supreme Court do what it did...
...I can't think of a single case in the 20th century where a Supreme Court justice turned to the right after he was appointed...
...But if they want it, the present Supreme Court will not stop it...
...Technology does change...
...RHB I don't claim to be a student of Rousseau, but I'm told he said that censorship was powerful to prevent the deterioration of morals, but never to restore them...
...It sounds plausible, and they don't understand what's actually happening...
...GC It's essential to establish some principles here...
...GC in ail lout the hard sciences, there is #assive value subtracted, I once ored through a t-ar yard catalog, and I estimated that 70 percent of the courses actually stultified their students, depleting the repository of human knowledge...
...CC Instead we have 27 major companies brought down by asbestos suits, and the rest just keep settling because they're scared to death of court action...
...That's effectively meaningless...
...Terrorism is going to be much worse than it is now, and it's going to go on for a long time...
...Now we have the Catholic Church, of all things, in a crisis mode...
...It finds some vague constitutional affirmation for runaway racketeering and meanwhile is restrained to a point of sclerosis about child pornography...
...I know of churches in Phoenix that attract tens of thousands of people to six or seven services a weekend...
...And yet Roe against Wade is wrong...
...I don't want them regulating technology...
...32 THE AMERICAN SPECTATOR • JULY/AUGUST 2002 GEORGE GILDER There seems to be something about jurisprudence that incapacitates conservatives with an excessive respect for precedents, which are almost always accumulated offenses and abuses of the other side...
...The religious right began to see all kinds of threats to civil liberties and joined the civil libertarian left in opposing what seemed to most people to be plausible and necessary steps to combat terrorism...
...GG One problem is the assumption that social change is an inexoraDie ','orC-e friar riles technological change...
...And they're beginping to infect the general public...
...RHB Right, but the courses are effective in changing their attitudes...
...The next case up, the same argument's made about antitrust—federal antitrust laws preempt the state antitrust laws...
...The Warren court held that the states could not have any law about subversive activity because the federal government has a law that preempts state regulation...
...GC And this is a court overwhelmingly appointed by Republicans...
...Antitrust action blocked them both, thus effectively destroying WorldCom...
...GC What about privacy...
...RHB Professors don't need children—they have students...
...BB I don't think so—technology is a tool...
...Their kids all become lawyers and left politicians and socialist professors...
...Most people don't send or receive a lot of great works of classical art through e-mail...
...But there's nothing wrong with antitrust, if you use it according to basic economic principles, and antitrust has improved greatly since the Warren era...
...They were not sympathetic to business...
...GG So we're corrupting the marketplace of ideas, one of the pillars of democracy and a key tool for innovation...
...They control the universities...
...But you have to think of where wealth really does originate, and that means this other culture, the one that defers gratification and devotes itself to work and even family to a great extent, and that tends to be religious...
...The crucial battle will be in public opinion about the culture...
...GG My sense is that those portions of the country that are truly sliding toward Gommorah end up disabling themselves...
...I've never seen an antitrust case before in which the government immediately gives away every-thing they won.The government won seven to nothing in the Court ofAppeals, which has people like Doug Ginsburg and Ray Randolph, who are very sound and not anti-business at all...
...Back when they adopted it, everybody understood what "establishment of religion" was—it was favoring one church, saying that this is the church that we support with our tax money...
...The ACLU's victories are not only never reversed—in fact, they constantly get fresh victories that build on past distortions...
...RHB Someone once said that the technology is on the side of anarchy...
...Or perhaps the wrong values have been added...
...CC What happened to the old rules about religion...
...The ACLU is the litigating arm of the left intelligentsia, which views the democratic expression of the community's values as tyrannical...
...GG It's one more ratchet, where conservative judges are reluctant to roll back something that's established, and so you end up with a one-directional valve, going ever left...
...Then the lower courts follow suit...
...GG The question for me is whether the decision violated a governing principle of a market economy...
...RHB Right—over the past two centuries, the nature of punitive damage actions has changed...
...And now we have DirecTV and EchoStar wanting to combine in order to compete with cable and other modes of broadband connections to homes...
...That is a good reason to go back and say, "What did the Constitution mean...
...There just isn't anything that could legitimately be called a general "right to privacy...
...Today, he is a senior fellow at the American Enterprise Institute in Washington and lion in winter of the antitrust bar...
...The battle over judges has extended from Supreme Court nominees to Court of Appeals nominees.That is why Senator Leahy, who is chairman of the judiciary committee, won't give President Bush's nominees a hearing...
...former Yale Law School professor of constitutional law A preeminent antitrust scholar and federal appeals court justice, Judge Bork was nominated by Ronald Reagan for the Supreme Court in 1987, then martyred at the hands of the Senate Judiciary Committee, in the first great battle of the partisan war for America's courts...
...I'm very skeptical of "slippery slope" arguments in general, because it seems to me that you can detect inclines in all sp f areas hat rendered slipper on whether judges na intellectual discipline...
...RHB Well, in the area you're talking about, it's going to prove very difficult to distinguish therapeutic use of genetic manipulation from the use of it to create new kinds of human beings...
...We shouldn't have that in America...
...GG No question—terrorism trumps everything else...
...Part of the problem was the people in the Reagan White House, many of whom were mad states' rights advocates...
...But the idea that there is a general right to privacy would mean that you can't punish anyone who, say, beats his wife in private...
...GG Instead we get "remedies...
...GO Yeah, but the focus on regression leads to a spirit of hopelessness that actually is self-fulfilling...
...RHB Sure, there are sources of renewal...
...We voted together 98.5 percent of the time, but we split on one case involving libel actions...
...People say that technology now makes censorship impossible...
...RHB We ought to stop being so damn sentimental about the criminal classes and stop viewing the police as somehow the enemy, which a lot of liberals and intellectuals do...
...GG There's a huge efflorescence of enterprise all over this country...
...That's terrible...
...That seems to me an area of technology I would like to see regulated...
...Somehow the left knows it and is cultivating chemophobia...
...GC You're talking about intentions—they would have integrated the browser with the operating system anyway...
...That's v.hy liberals want to stop wealth creation at all costs and above all keep wealth from influencing politics...
...A teacher in a public school read the Bible silently for his own purposes during a silent reading period...
...GC I don't think there has been that much change...
...The result is a growing body of constitutional law which is adversarial toward traditional virtues, traditional values...
...But if that's the kind of a war that we're in, those are the kinds of things we're going to have to do...
...When Microsoft was challenged, the obvious defense was that there was an efficiency involved in coupling the browser and the operating system...
...If terrorism is not stopped, and they get nuclear devices and take out some of our major cities—then you'll see chaos...
...I don't believe the word appears in the Constitution...
...They control the foundations...
...For example, what we've talked about is the vulgarization of society by the mass media, which is a new thing...
...And we know where the journalists stand on political matters...
...For crying out loud, today even the Army advertises an "Army of One"—the individual...
...JULY/AUGUST 2002 • THE AMERICAN SPECTATOR 4 2...
...Bill Gates and his colleagues were afraid the Netscape browser was going to provide an alternative to the Windows operating system, their monopoly...
...cloning, designed to pi-real human beings, is an identifiable process that can b panned without banning tine use of the general procedure to create beneficial gene-based treatments for cancer or Parkinson's disease, RHB The question is whether the line gets blurry in some places, so it's arguable whether it's therapeutic or whether it's changing the nature of human beings...
...They pretend every candidate not on TALKS TO GEORGE GILDER ABOUT LIBERAL JUDGES, PACKED COURTS, MONOPOLY POLITICS 8 PUSHY PORN JULY/AUGUST 2002 • THE AMERICAN SPECTATOR 33 the left is a dangerous right-winger...
...GG Not "often"—almost always...
...RHB More than that...
...That remains an open question...
...But capitalism also encourages consumers to—how does Nike put it?—"Just do it...
...It's astounding...
...I guess that will be the next thing to go...
...He needed big money in a hurry in order to campaign effectively in New Hampshire...
Vol. 35 • July 2002 • No. 4
