Editorials
Battle of the Bork Robert H. Bork is the right's right man at the wrong time. He is a genial, intelligent, honest representative of a judicial philosophy with which we have considerable sympathy...
...Bork, has kept pretty mum on stance toward abortion...
...The duty of judges is rather to identify "core valves" jn constitutional provisions and apply mem to current problems...
...with which we don't...
...If the Robert H. Bork who testified before the Senate Judiciary Committee was seen to have a more flexible judicial philosophy man did the Robert H. Bork of his earlier academic career, mat only shifts the spotlight from one issue to another...
...EdeSi Pastora, an opponent of the Sandinistas, now says that he may one*day return to Nicaragua...
...As democrats (small "d"), we have to admit that the Supreme Court is the most elitist of our governing institutions...
...Had Sister Kane been asked by the pope to express her thoughts to him once again, this might be a.different church...
...What is move, sonto of the positions that many—again, not all—of Bork's opponents hold most strongly, against him are positions that, in our eyes, argue in his favor...
...The deference to business that colors his thinking is one part of that ideology...
...Perhaps he is speaking about the return to publication of the opposition paper La Prensal Or does he mean the suggestion of the Sandinista Rafael Cedra, speaker of the National Assembly, that ceasefire talks take place between the government and the contras through an intermediary such as Cardinal Obando...
...Potempkin reforms," President Reagan belittles the changes4n Nicaragua, "mereshow," "cosmetic changes...
...He is a genial, intelligent, honest representative of a judicial philosophy with which we have considerable sympathy and a political outlook...
...It would be silly to think he has no ideology...
...At least, that is what we ascertain given die list of correctives Mahony's pastoral outlines...
...What separates Mr...
...It will take time, aad Central American time...
...But even these lesser changes — new heralds of the women's message — prove that, indeed, someone has been listening to what the women have said...
...Ali his life Robert Bork has been not just a scholar but an litical person...
...They make the Sandinista neighborhood committees, whose abolition Reagan now demands, look positively genteel...
...Let us restore faith in dialogue and give peace a chance.'' Nf...
...Bork's opinion of tyoe v. Wade is to be the litmus test i suitability, then he passes...
...A judicial philosophy that limited the role of justices to some sort of literal or mechanical application of the Constitution's text is theoretically naive and practically unworkable—and, if it were not, U would Ifc dangerous...
...Though Mahony never mentions women's ordination, he is calling for: (1) the maximization of inclusive language in writing, speaking, teaching, and preaching, including references to God fashioned after those biblical passages wherein God is likened to a female...
...At every point where individuals and groups have,remonstrated, insisting that the...
...A part that concerns us even more is his deference to executive power...
...ear 6r "Just as thef Women Said" is a phrase taken from the account in Luke's Gospel in which several women disciples, who hod witnessed Jesus' empty tomb and had told the apostles about it, were not believed...
...Bork's politics, however, have always betsri in defense of established "systems"— whether the free st, or Madisonian majoritarianism or Burkean sm—the maintenance of which he inevitably sees as the first priority for the well-being of all...
...Precisely courts and the Court are more isolated from popular politics, they have often become the last recourse of individuals and minorities whom popular politics exclude or whom government has injured...
...have often turned too readily to the courts, rather than legislatures, to puj|ue objectives, and in the upshot, liberal politics have probably suffered for it...
...Just as the Women Said" is also the title of a pastoral letter calling for fuller participation of women in the church, issued in August by Los Angeles Archbishop Roger Mahofly...
...As the parties to the accord would probably admit in their more candid moments, their agreement was predicated on selfinterest as well as on more altruistic goals...
...President Reagan is not entirely wrong when he anticipates that the Sandinistas will not have undergone a total conversion by November 7. They will be compelled to make concessions, but they are not about to abandon what they believe is their historic mandate to hold power...
...it may or may not be similar to ours...
...The men felt they had to go, to the site themselves, where they found it "just as the women said...
...Now it would be a better thing if the Senate, thoughtfully and without hysteria or recriminations, voted down the nomination...
...The title is particularly appjEojgrifte.in thai ^tovi^J^ijed, to, some 2,500 women of the diocese, the archbishop has found that the church itself is basically., and tragically, just as the women said...
...We are tempted to conclude that it was a good thing Mr...
...In addition to the Nicaraguan developments already mentioned, the two sides of the Salvadoran conflict will meet this month under the auspices of Archbishop Rivets y Damas, and opposition leader Ruben Zamora has made plans to return to El Salvador after seven years of exile...
...As President Arias told the U.S...
...Perhaps the best measure of the changes now taking place within the U.S...
...None of the governments involved, with the exception of Costa Rica, has a democratic history on which to rely...
...There is no engagement in a Sacco and Vanzetti case in Bork's past, as there was with the original evangelist of judicial restraint, Felix Frankfurter...
...2) the creation of new collaborative (male/female) ministries includirig policy formation and decision making...
...In there is no reason conservatives cannot be as aoeressive as liberals in interpreting 547 Of reluctance is also troubling...
...Pace Senator Kennedy, in Bork's America there would not be rogue police breaking down citizens' doors at midnight...
...This is a conclusion reached reluctantly but reached nonetheless...
...There are, most prominently, the questions of judicial philosophy—original infcnt, interpretivism, judicial restraint, and all that...
...Or to the appointment of Cardinal Obando as head of the Nicaraguan national reconciliation committee...
...The question of consistency may not loom so large now that the supposed gap in judicial philosophies is seen to be narrower—but the question of political outlook is only emphasized...
...So have been most of the great Court justices...
...A "strict constructionist" Bork, if such a thing were possible, would be one whose own political outlook was not of great consequence...
...And in El Salvador, the army is not likely to accept long-term, wide-ranging proposals that would bring it under genuine civil control...
...When the five countries of the accord met last month in Managua with eight other Latin American countries, significant progress was made on refugee resettlement...
...We wish his brand of judicial restraint were tempered with the" kind of argument John Hart Ely has made in favor of judicial activism when the openness of the political process itself is at stake...
...This swing vote oft Supreme Court of the United States is not one of them...
...Judge Bork's opposition to the one-man, one-vote decision is disturbing...
...There is much to be done...
...Bork from most Hbertrf counterparts turns out to be less a matter of sharp principle than a relative degree of reluctance to interfere with settled ways or the decisions of elected branches...
...Indeed, Bork's critics have pointed to definite patterns in his decisions, arguing that he is "result-oriented" in a way entirely inconsistent with his claims simply,to be applying the law without regard to personal values...
...Catholic hierarchy is that this time it was Archbishop Rernbert Weakland — not Sister Theresa Kane —who addressed Pope John Paul II saying: "There are no words to explain so much pain on the part of so many competent women today who feel they are second-class citizens in a church they love....Women...want to be seen as necessary to the full life of a church that teaches and shows by example the co-discipleship of the sexes as instruments of God's Kingdom...
...We see no evidence mat a Justice Bork would provide a principled conservative obstacle to the single greatest threat to our constitutional order—the expansion of executive {power, primarily on national security grounds, and the executive's, ability through secrecy or administrative leverage to escape democratic control...
...There is much to be said for this reluctance...
...Nor should the U.S...
...simply bide its time before declaring the Arias effort a failure on November 8. Despite the plan's limitations and the likelihood that more than one Central American government will try to bend its provisions to their own advantage, the treaty remains the best prospect for peace available...
...To begin with, there is Roe v. Wade...
...Almost instinctively he multiplies and magnifies the dangers of change, not the costs or irrationalities of the status, quo...
...to our ears, this is not just the academic style talking but the political worldview...
...Itis hand to swallow the indignation over (his political demagoguery voiced by yesterday' ders of Ollie North, but a lot of fair-minded people must i impulse to accept the nominee if only to, reject the caricature...
...Our constitutional order has survived to no small extent because of the generality of the Framers' phrases and me flexibility of the Court...
...Carballo, and the reopening of Managua's Catholic radio station...
...They provided the public with a remarkable discussion of constitutional issues, Judge Bork himself performed admirably...
...We agree...
...Judge Bork may be right in protesting that he has no' 'ideological agenda" for the Court—if you stress the word "agenda...
...Bork was nominated...
...This one-time Scholar for Goldwater has not been mistaken by the conservative administrations and think tanks which have taken him to their bosoms...
...To the relatives of the 60,000 Salyadorans and the 20,000 Nicaraguans who have perished in civil strife in the last eight years, even a flawed plan is better than none at all, monumentally better...
...There are a number of influential positions we would be eager to see a Robert Bork fill...
...Some all—of Bork's critics have created a caricature of the man and his thought...
...Judge Bork's proclivity to limit access to the courts by denying litigants standing or by affirming governmental immunity is profoundly unsettling...
...But there is a definite cast of mind at work here, a moral imagination alive to one set of difficulties, idistant or dispassionate about another...
...spoken by one with far too little familiarity with such accords himself...
...While we recognize the genuine good will behind such a public act of reconciliation, and think that it could provide a healing of sorts, care should be taken not to promise more than can be delivered...
...That will also be true of the authoritarian elements in the other signing governments...
...THE, RtJLE OF REASON President Reagan's pronouncement that the Central American peace accord fashioned by Costa Rican President Arias Sanchez is ."fatally flawed" was...
...We have opened the door to the rule of reason in Central America...
...How far froja^the1 specific text can one go in seeking the "core value" in order to find a relevant guide for resolving today's disputes...
...Of course, once the insurgencies against the "system" have succeeded, once they can be seen as benefiting all, or at least as irreversibly institutionalized, then a Robert Boric acknowledges their crucial value...
...By now, however, it should be evident that Judge Bork does not adhere to any such "strict" philosophy...
...Take Guatemala, hardly a beacon of liberty...
...The question of amnesty is ftr from being settled, and the question of political rights is evwv more complicated...
...But his i objection is one we—and a host of constitutional scholars—have beene almost fifteen years...
...Women want real justice, not mere empathy with their plight or salve for their wounds...
...America magazine concluded its editorial on file Bork i tion by saying, "If Mr...
...The Bork hearings Jbpye bjeen the nyjst important eyqtf of the Constitution's bicentennial...
...Many observers have noted the "scorn" or "contempt" in Bork's treatment of so many constitutional rationales for change...
...Yet his belated endorsements show no sign that he would react differently to the new challenges that have not already been ratified by years of political struggle and social change...
...We will not fall into a trap set by someone who shows us the calendar every day, anxious to bury the last hope...
...Congress last month...
...We strive for common goals, others may require a longer period...
...Is he referring to the return of the exiled Msgr...
...None of these shortcomings offers sufficient reason to erect insurmountable roadblocks and sow new mines of suspicion and conflict...
...By now ft should be seen thft three questions are ones of balance and degree...
...There is, however, a lot more candidacy than that...
...The local civilian defense committees there are notoriously ruthless...
...Judge Bork is no extremist...
...systems" consistently violated the human dignity of some citizens and constricted their potential, Bork's considerable powers of intellect have always turned 1o finding fault with the remonstrance...
...The Guatemalan groups are not likely to disappear because of the Arias accord...
...To the contrary, Bork's opinions on the War Powers Act, the special prosecutor law, and congressional standing to challenge executive actions in court reveal that his brand of conservatism may end up- more Napoleonic than Madisonian...
...Furthermore, he has beguri^lanning for a service of recon548 dilation at the cathedral — in the spirit of the apology Pope Paul VI offered at Vatican II for the responsibility Roman Catholics bear for divisions within the Christian church...
...Furthermore, it is no good deferring to the more democratic branches when the democratic process itself can be blocked by gerrymandering, government secrecy, restrictions of free speech, or, perhaps in the future, patterns of campaign funding...
Vol. 114 • October 1987 • No. 17
