A record that speaks for itself

...His theory of the proper ambit of government also takes 478: Commonweal suspiciously convenient turns...

...an outspoken advocate of abortion rights and a member of the Senate Judiciary Committee...

...The second theme is equally troubling, but oddly inconsistent with the first...

...Because this justification for the latter is deference to majority rule — a tenet he is judicially unwilling to protect...

...Indeed, many hope that in time the Court will enlarge the zone of privacy still further, to include such areas as sexual orientation...

...He is a good measure more conservative than Abe Fortas was liberal, and moderately conservative senators should take note of that...

...The authors defined conservative votes as those for business interests and against criminal defendants, civil-rights plaintiffs, and public-interest groups...

...For one, he boasts a mighty resume: Chancellor Kent Professor of Law and Alexander M. Bickel Professor of Law at Yale School...

...The United States is not a pure democracy...

...Those preferences are not hard to prove...

...In a study of his votes in several hundred cases, the Public Citizen Litigation Group found Judge Bork almost perfectly conservative...

...and found a right of families to live together in Moore v. City of East Cleveland and other rulings...

...Judge Bork poses a particular risk to the political balance of the Court, given its current makeup of three conservatives, two liberals, and three centrists...

...The justice's votes fell into three basic conservative patterns, and while the other justices had their preferred patterns too, Rehnquist was outstanding in his allegiance to his political druthers...

...He has paid for these positions: For a time, he was on a conservative blacklist for appointment to the Supreme Court seat now occupied by Antonin Scalia because of his congressional testimony against the court-stripping bills...

...This is particularly so in light of Judge Bork's recent conversation with Senator Bob Packwood (R-Oreg...

...But on nearly every other judicial issue as well, Judge Bork sits on the conservative side...

...One needn't be schooled in legal exegesis to perceive that this is a joint process, with neither branch assigned a greater role...

...the majority can have its way only within the metes and bounds of the Constitution...

...Judge Bork's lackadaisical approach to the court qua democratic referee contradicts his record of indifference to minorities...

...A scenario for 1987...

...to tacit abandonment of evolving protections of liberty and property, to sacrifice of craftsmanship, and to distortion of precedent.'' Judge Bork clearly courts the same danger...

...But otherwise, the doctrine, which requires courts to find in the Constitution only those rights fairly discoverable from its text, history, and authors' intentions, is hogwash...

...He and his party consequently deploy every parliamentary tactic available to thwart the nomination: delaying and drawing out the hearings, stretching the Thanksgiving and Christmas recesses, filibustering the matter once it hits the Senate floor...

...The nomination is eventually withdrawn...

...Nor is he an invariable right-wing ideologue...

...Clearly, he signifies a conservative vote, and one vote on a nine-member court means a great deal...

...That zone is a complex of intimacies, implicating the family, the home, contraception, and reproduction...

...In one of his circuit court decisions, for instance, the nominee ruled that bipartisan congressional leadership lacked standing to challenge, on constitutional grounds, an action by the executive branch...

...Second and more generally, slavish adherence to a party line is bad judging and cynically endangers the legitimizing function of the courts...

...He is a contributing editor of'The Progressive magazine...

...Since Griswold, the Court has expanded the privacy right...

...To enforce such a law merely out of the conviction that racism is morally wrong is an idea of "unsurpassed ugliness," he wrote in the New Republic...

...Judges of the Supreme Court...

...In a certain sense, it is disingenuous to voice outrage at the clear political content of Judge Bork's judicial record...

...In fifty non-unanimous decisions by the D.C...

...It has extended the right to use contraceptives to unmarried persons...

...In recent years, he has opposed such pet conservative initiatives as the balanced-budget amendment and the "court-stripping" bills that would have circumvented Roe v. Wade by removing abortion cases from federal court jurisdiction...

...But in the eight suits pitting the government against a business, the judge sided invariably with the latter.'' One can predict his vote with almost complete accuracy simply by identifying the parties in the case," the report concludes...

...Strom Thurmond (R-S.C...

...For instance, Judge Bork strongly disapproves of the constitutional right to privacy established by the Supreme Court twenty-two years ago in Griswold v. Connecticut...

...Second, sticklers for what Stanford Law Dean John Hart Ely calls "clause-bound interpretivism" inevitably confront anomalies that demand abandonment of their theory...

...the Senate cannot move until he nominates someone...

...Judge Bork also has a stingy view of the standing doctrine, which sets out the legal requirements for a person or entity to sue...

...A former Yale Law School colleague, Dean Guido Calabresi, said a month after the nomination that Judge Bork "ignores the significance of discrimination...

...At this juncture, Bork supporters quickly stress that their man's judicial conservatism means that he respects precedent...

...He has also criticized the "one man, one vote" line of decisions, begun a quarter century ago, in which the Court redressed legislative voting malapportionments that made some citizens' votes worth only a fraction of others...

...The ruse works...

...As the Fortas story suggests, full Senate scrutiny of Court nominees, including their philosophy and politics, and rejection or confirmation based thereon, is both historically common and constitutionally valid...

...As the surveys of Judge Bork's record prove, judicial restraint is just a cloak of neutrality for conservatism...

...First, the phrases of the Constitution — "due process," "equal protection" — are too open-ended to determine what is fairly derivable from them...

...Witness, for instance, his flirtation with the idea that the First Amendment protects only political speech...

...This theory also explains the light Senate scrutiny accorded nominees for executive branch positions...

...it is a radically conservative one...

...Typically in these cases, state or local legislatures used clever gerrymandering to dilute the voting power of blacks, rural folks, or members of disfavored political parties...

...The chairman of the Senate Judiciary Committee, a member of the opposition party, wholly dislikes the political tint of the nominee...

...In a speech before the American Enterprise Institute that year, he saw nothing wrong in curbing the liberty interests of homosexuals through morals legislation...

...No savvy Supreme Court observer, for instance, will have much difficulty predicting the positions of Chief Justice William Rehnquist or Justice William Brennan in any given case...

...There are different styles of conservative judging, of course...

...The debate in the Constitutional Convention over Court appointments focused on two alternatives: congressional or Senate election of justices, or Senate confirmation of presidential nominees...

...was the chairman of the Judiciary Committee, and the result of his and his party's deft use of parliamentary procedures was the ascendancy of their ideological soulmate, Warren Burger, to the top judicial spot in the land...

...And, understanding that they are authorized by history and the Constitution to do so, every senator who sits on the left of the far right should reject his nomination because of his politico-judicial preferences...

...But he deserves rejection for another reason: With all his theories of judicial restraint, he has no theory of personhood, and such a vision is vital for constitutional interpretation...

...No dummy, then...

...If anything, constitutional history suggests the Senate may have the weightier voice...

...With Judge Bork on the Court, they undoubtedly would have that chance...

...It is consistent with the constitutional scheme of checks and balances, which requires the concurrence of two and sometimes three branches before government action can be taken...

...Griswold is an "utterly specious" and "unprincipled" ruling, he declared six years after the decision was handed down...

...In 1978, Harvard law professor David Shapiro studied then Associate Justice Rehnquist's votes on the high court since his 1972 appointment...

...Judge Bork seems to have his particular conservative patterns too, and liberals, moderates, and mainstream conservatives should be very worried about two of them...

...Unsettling as these sometimes troglodytic views are, the recent surveys of Judge Bork's judicial record are even more cause for pause...

...of John Rutledge in 1795, Tribe continued, "began a tradition of inquiry into the political views and public positions of candidates for the Court...

...Though the legitimizing function of the courts makes it a taboo topic, political values clearly play major roles in the rulings of judges of all jurisprudential stripes...

...And the claim is wrong...

...All these positions bespeak unconcern with keeping the pathways of democracy clear, with ensuring that the constitutional checks check and balances balance, with verifying that majority rule is truly majority rule...

...He disavowed that view in 1973, but it became clear in 1984 that his recantation may have been a mixed blessing...

...In 1971, Judge Bork concluded that the First Amendment "does not cover scientific, educational, commercial, or literary expressions as such" and, therefore, the elected branches of government can prohibit or censor such speech without judicial interference...

...Is this common practice constitutionally correct...

...For Judge Bork, people seem to be what's left over after the sectors of government have divvied up their constitutional power...

...He has written on church-state issues for Commonweal...

...in twenty-six of these, Judge Bork voted for the government...

...The debate over Supreme Court nominee Robert Bork is an embarrassment of political posturing on both sides of the aisle...

...An equal Senate role in these appointments makes constitutional sense in other ways...

...However maltreated, 31 September 1987: 479 blacks, women, gays, and others will likely get no solicitous-ness at Judge Bork's bench...

...TWO VIEWS OF THE BORIC NOMINATION: THE STAKES & THE ISSUES A RECORD THAT SPEAKS FOR ITSELF PRINCIPLE, PRECEDENT, & PREDICTABILITY FRANCIS FLAHERTY Thumbs down on Robert H. Boric, But first a story to clear the air: The lame-duck president announces his Supreme Court nominee, a lawyer and jurist of sterling credentials...

...established the right of women to have abortions in Roe v. Wade and subsequent cases...

...His service in the Justice Department was of course marked by his firing of special prosecutor Archibald Cox, at the behest of Richard Nixon, in the midst of Water-gate...

...In that case, the Court held that a Connecticut couple could not be jailed for using birth control in their own home...

...As the people's choice, President Reagan deserves to and will have his influence on the process...

...In an opinion by William O. Douglas, the Court held that, while there is no explicit right of privacy in the Constitution, the First, Third, Fourth, Fifth, and Ninth Amendments have "penumbras" and "emanations" that comprise a constitutional zone of privacy within which the government cannot intrude...

...The first is blindness toward bias...

...Perhaps true, but no one can fault women, single people, families, and others if they'd rather not take the chance...

...artistic and scientific speech and writing constitutionally could be censored or prohibited by the government...

...One of the three patterns Professor Shapiro detected in Chief Justice Rehnquist's jurisprudence, for instance, was a strong bias toward states' rights...

...A sampler: He opposes affirmative action...

...For instance, suppose that the New York federal appeals court held, under a novel First Amendment theory, that the right of free speech included the right to hear and that citizens' rights were therefore violated when a left-wing Latin American journalist was deported by the Reagan administration before she could deliver a speech...

...Why is it important to keep this former Chicago antitrust lawyer off the Court...

...Finally, the many, elusive, and often contradictory intentions of the fifty-five Framers are impossible to determine...

...But there is a question of degree...

...He said certain precedents were so fixed, some issues so settled, that regardless of how you felt about them you shouldn't vote to overrule them," Senator Packwood told the New York Times...

...In Judge Bork's United States, those boundaries seem perilously broad...

...And Judge Bork's vote is not just a conservative vote...

...Conservative justices would of course be itching to grant "cert" and reverse the ruling...

...antitrust scholar...

...Judge Bork has it backwards...

...Miranda v. Arizona, Mapp v. Ohio, Furman v. Georgia, and University of California v. Bakke are just a few of the Court's more famous 5-4 cases, and in them one vote made the difference in such crucial legal areas as the breadth of suspects' rights, the con-stitutionality of capital punishment, and affirmative action...

...Twenty-eight of the studied split cases pitted the government against an individual or a public-interest group...

...He doubts the constitutionality of the Fairness Doctrine, the recently overturned thirty-eight-year-old Federal Communications Commission policy that required broadcasters to air both sides of important public issues...

...This "unyielding insistence on a particular result," Professor Shapiro concluded, "appears to have contributed to a wide discrepancy between theory and practice in matters of constitutional interpretation...

...Judge Bork told the senator that he would have dissented in Roe v. Wade had he been on the Court...

...A forthcoming Columbia Law Review survey of 1,200 decisions by Eisenhower, Ford, Nixon, and Reagan appointees found the judges voted conservatively an average of 69 percent of the time...

...Put another way, in our democracy the bestowal of a Supreme Court justiceship is a signal event, deserving of as much democratic input as possible...

...From George Washington to Richard Nixon, "Almost one out of every five nominees to the Court has failed to gain the Senate's consent," wrote Harvard law professor Laurence Tribe in God Save This Honorable Court (1985...

...Packwood then asked him about his treatment of precedent...

...That the president would have the sole, or predominant, part in Supreme Court selections was never a serious proposal...

...He has, for example, opposed the Supreme Court's ban on poll taxes in Harper v. Virginia Board of Elections, a 1966 ruling...

...For example, the First Amendment prohibits only Congress from abridging freedom of speech...

...Even in the conservative world of Republican-appointed jurists, Judge Bork sits on the right...

...appeals court, for instance, the Nader-affiliated group found that the nominee voted against the underdog a daunting 96 percent of the time...

...If, for instance, a president must sign each of the thousands of bills that Congress passes before the bills become law, how much more important to the constitutional vision is the concurrence of the branches when the issue is the appointment of a life-tenured member of the third and coordinate branch...

...First of all, the Columbia survey belies any claim by Judge Bork that he is a mainstream conservative...

...No other nomination that a president makes receives more rigorous scrutiny...

...Under his banner of "judicial restraint," Judge Bork believes that judges should not extract from the Constitution any rights that cannot be fairly derived from the document's text, history, and the intent of the Framers...

...As Professor Tribe has written,' 'No collective body can really be said to have a single, ascertainable purpose or intent...

...This was 1968, when Lyndon Johnson nominated his liberal soulmate, Abe Fortas, to succeed Earl Warren as chief justice...

...The Court has full discretion to select which 150 or so cases it will hear of the thousands of petitions presented to it yearly, and Court watchers know that the justices' political battles are just as furious in case selection as in case decision...

...solicitor general and acting attorney general in the Nixon administration...

...But the same citizens who chose Reagan also elected a Senate that is Democratic by a count of fifty-four to forty-six Republicans...

...But Judge Bork, along with only three other Reagan appointees, ruled on the conservative side in 90 percent of their decisions...

...What about Judge Bork's vaunted theory of judicial restraint...

...Though he later abandoned this stated conclusion, what vision of humanity permits the denial of whole universes of self-expression...

...By this they mean that his placement on the Court will not automatically mean the reversal of Griswold and Roe v. Wade and the roping off of the zone of privacy...

...In 1963, he opposed the public-accommodations title of the then-pending Civil Rights Act, arguing that motel and restaurant owners had a liberty interest in banning blacks from their premises if they so desired...

...After all, if only people rich enough to pay the poll tax can vote, we have something less than majority rule...

...Judge Bork seems to have little regard for the role of the courts as the referee of democracy, the institution that makes sure the game is played fairly...

...The one good thing about the theory is its proper quest for principles to prevent judges from reading into the Constitution anything they want...

...He did not include Roe v. Wade in that category...

...But Judge Bork still sits on the far right...

...Even absent the abortion question, the right of privacy is a pivotal constitutional doctrine that provides a sanctuary of individual freedom in an age of growing governmental regulation and power...

...Judge Bork's benighted views and his threat to Court balance are sufficient for anyone with an ADA approval rating of 25 percent or more to hope ardently for his Senate rejection...

...The only democratically authorized replacement for Lewis Powell — he or she will be our nation's 107th Court justice — is one acceptable to both the Republican administration and the Democratic Senate...

...But Judge Bork will have none of that because he detects no penumbras, no emanations, and no right of privacy in the Constitution...

...480: Commonweal...

...The Senate rejection FRANCIS FLAHERTY is a legal journalist who was formerly the national editor of The National Law Journal...

...Judge Bork's opposition to affirmative action and his apparent belief that the Constitution requires no special scrutiny of claims of sexual discrimination are just two examples of this tendency, a tendency which ignores one vital function of the courts in this democracy: to protect minority rights from the inevitable depredations of majority rule...

...For anyone concerned about that right, Judge Bork's remarks to Senator Packwood should clearly offer sufficient reason for his rejection...

...For a long time, he believed that the Free Speech Clause of the First Amendment protected only political speech...

...In such intra-branch matters, a president deserves to have his own choice within broad parameters of acceptability...

...Does this mean the president is free to do so...

...How typical is the Fortas affair...

...Moreover, Judge Bork represents the critical fourth conservative justice needed to accept cases for review under the certiorari procedure known as the "Rule of Four...

...Associate Justice Bork would mean that the Court's conservative faction need only persuade one of the three "swing" justices to assemble a majority of five in any case...

...But the claim by Bork supporters that the Senate must lightly scrutinize the nominee, merely ascertaining his professional competence and ensuring that his views are not wholly off the judicial map, has made the matter particularly murky...

...Article II of the Constitution provides that the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...

...11 September 1987: 477 There are some things to like about Robert Bork, who has served for the past five years on one of the nation's most prestigious appellate courts, the U. S. Circuit Court of Appeals for the District of Columbia...