Battle for Justice/The Tempting of America
Siegel, Fred
A LEGAL LENINIST BATTLE FOR JUSTICE How the Bork Nomination Shook America Ethan Bronner Norton, $22.50, 399 pp. THE TEMPTING OF AMERICA The Political Seduction of the Law Robert H. Bork The...
...in his book, the man who has rightly insisted on a distinction between emotional gesturing and rational speech has unfortunately given himself over to personal denunciation...
...In his nomination hearings, Robert Bork tried the latter tack...
...Bork, as Bronner makes clear in his even-handed account, was in many ways unjustly maligned by his critics like Senators Kennedy and Metzenbaum...
...The pity of all this is that in The Tempting Bork has again missed the opportunity to open up a useful debate...
...Under the new dispensation, the values needed to support a democratic life would be given no preference...
...REVIEWERS CHET RAYMO, professor of physics at Stonehill College in Massachusetts, is a science columnist for the Boston Globe...
...Bork was nominated because, despite his own lack of personal prejudice, he had made himself into the judicial embodiment of Attorney General Ed Meese's gut-wrenching racial politics...
...Bork was far from the nonpolitical truth-seeker described by his handlers...
...Never mind for a moment that Bork, like many academic leftists, is only willing to study reality in order to see if it will work in theory...
...What may have angered Bork is that Specter pinpointed a hole in Bork's logic, and what smarts is that Specter's questioning belies the charge that Bork's defeat was simply a matters of smears...
...Bork clearly envisions himself in a Manichean struggle with the evil forces of egalitarianism seeking to defy what he describes as "the tyranny of the bell-shaped curve...
...Bork's meandering answer picks at some concrete differences...
...But the reform proposals have come under strong fire from First Amendment absolutists who insist that we remain the only democracy that doesn't regulate campaign advertising...
...Bork's rigid originalism is indefensible...
...One man's vulgarity," he intoned, "is another man's lyric...
...The Bork hearings, Bronner argues with justice, were a failed opportunity to debate the past quarter-century's vast expansion of judicial power...
...at the very least, words are always fuzzy at the edges, so that any reading of the Constitution inevitably takes on the political cast of the reader...
...FRED SIEGEL is spending the year at the Institute for Advanced Study in Princeton...
...But, writes Bork, "the logic of...
...His highest compliment, writes Bronner, was reserved for economist Aaron Director, the man who converted him from socialism to free market capitalism...
...Bork was described as a madman lusting to sterilize women...
...Director, "the most savagely honest intellectual I have known," started out as a socialist...
...He told the constitutional conservatives of the Federalist Society that an originalist judge, a judge who adhered to the Founders' own sense of what they were doing, would have no problem in overruling a nonoriginalist precedent...
...The Warren Court thought it knew better...
...Bork's answer comes down to the assertion that he has read the Constitution in the only true way possible...
...Instead, as Bronner shows, the same Bob Bork who had presented himself a fearless seeker after truth trimmed his sails and was rejected to boot...
...Disappointed at having been passed over earlier, he campaigned vigorously for nomination to the Court by speaking extensively on the right-wing rubber-chicken circuit...
...Bork, among many others, has complained that the Court's decision in Brandenberg v. Ohio, delivered at the height of the anti-Vietnam protests, was a sharp break with the Founding Fathers...
...It is the reason, alone, of the public that ought to control and regulate the government...
...He is a legal Leninist, a man of steadfastly revolutionary principles willing to make any tactical concession necessary to further himself and the cause that will carry him to victory...
...Because I was, out of necessity, patient with him," writes Bork, "a lot of people not versed in constitutional law got the impression that this was a serious constitutional discussion...
...He's condescending to Arlen Specter, the one senator who attempted to engage him in serious debate...
...How much better it would have been had Bork based his case for judicial restraint on the grounds that if we can't be certain about the meaning of the Constitution, we have to be careful to limit the power of the judges whose only source of restraint has been eliminated...
...Instead, they translate the political into the personal and denounce the character of their rivals...
...Gans wants to restore speech to "the central role in campaigns," and a number of bills have been introduced to regulate campaign advertising...
...The anti-Bork tactics were borrowed from the symbolic advertising campaigns the Reaganites had used so effectively against liberals...
...It was only in the late sixties, Ethan Bronner notes in his sharp-eyed account of the Bork hearings, Battle for Justice, that the Court moved away from a tiered system of First Amendment protection in which a distinction was made between the need to give rational, political discourse absolute protection while applying a lesser standard to more emotive modes of expression, such as sleep-ins and fuck-you gestures...
...Bork is a throwback to the conservatism of the 1950s which lacked a populist thrust...
...Why, asked Specter, did Bork allow for a nonoriginalist, i.e., expansive, interpretation of the Constitution in some areas, such as speech, but not others-such as extending Fourteenth Amendment protections to women...
...Anyone who reads the Battle for Justice or Bork's own account of his ordeal and judicial philosophy, The Tempting of America, can only breathe a sigh of relief...
...In The Tempting, Bork takes the implausible position of being critical of the key civil rights cases prior and subsequent to Brown v. Board of Education while praising Brown itself...
...The Bork that emerges from these books is singularly self-important...
...THE TEMPTING OF AMERICA The Political Seduction of the Law Robert H. Bork The Free Press, $22.40, 432 pp...
...The images, says Curtis Gans, director of the respected Committee for the Study of the American Electorate, have pushed rational debate out of campaigns...
...The American political process has been perverted by "attack ads," thirty-second image barrages which threaten to drive reasoned debate out of both the electoral and the legislative processes...
...Change, however, is not always progress...
...But it never explains why, without bringing political preferences into the picture, different judges will choose different levels of generalization in interpreting the text...
...It was...
...theory drove him from that position as later, through him, it drove me from socialism...
...Ronald Reagan had charged that if Democrats were allowed to pick our judiciary they'd appoint "a bunch of sociology majors" so that "drugs, thugs, and hoodlums" could conquer America...
...But at the hearings, Bork never raised the kind of issue I've just mentioned...
...Asked to name the book that had the greatest impact on him, he replied: Whittaker Chambers's Witness...
...The plunge into a postmodernist nihilism was summarized by Justice John Marshall Harlan...
...The passions," Madison went on, "ought to be regulated and controlled by government...
...He is the author of several books on science and the forthcoming, In the Falcon's Claw: A Novel of the Year 1000 (Viking...
...Bork has very little new to say about the hearings, but he comes off as arrogant and mean-spirited in the telling...
...He never discussed the need to balance freedom of expression with comity, a discussion which has been directly pertinent to the current attempt to restrict hate speech on American campuses...
...Or, rather than try to persuade, they simply bargain with others who are assumed to have unalterably opposed views...
...Fred Siegel First Amendment fundamentalism sometimes seems committed to sawing off the democratic branch on which it sits...
...But Bronner also notes that Bork and the Reaganites were hoist on their own petard...
...Bork prides himself on his intellectual toughness and logical rigor...
...Gans will probably be dismayed to discover that the distinction he makes between rational speech and emotional imagery parallels distinctions made by Robert Bork in his criticisms of the Warren Court...
...At the hearing he was caught in the kind of rhetoric he used to campaign for nomination...
...In Federalist 49, Madison had talked of the importance of reason...
...Americans no longer debate...
...Did those nonoriginalist precedents include Brown v. Board of Education...
...It's unconvincing...
Vol. 117 • February 1990 • No. 4
