For Want of a Nail
From the November 20, 1987, issue of NR.


Maggie Gallagher

Constitutional Illiterates
In part, the White House was banking on Robert Bork himself. Many of Bork’s supporters (including me) expected he would “Ollie North” the Judiciary Committee into submission. In a way, we were right. “He was a magnificent defender of legal principles, and they respected him for it,” says Randy Rader, who attended the hearings. “If they had voted the moment he left the podium, he’d have gotten at least eight or nine votes.” But while Bork patiently explained to the senators the importance of the rule of law, liberal groups made sure the senators understood the importance of voting right. The anti-Bork coalition had almost a dozen lobbyists working the committee during the hearings, conferring with senators and their staff, repackaging Bork’s remarks for the press. “I can’t tell you how many times I saw [civil-rights activist] Ralph Neas huddling with Joe Biden,” says one administration strategist.

Senators ended up ignoring Bork’s responses, and proceeding according to script. At one point during the testimony, Bork explained his attack on the legal reasoning behind Griswold v. Connecticut — the contraceptives case in which a constitutional right to privacy was first discovered. The trouble with that right, said Bork, is that it has no boundaries. Every law infringes on some citizen’s right “to be let alone,” or else there’d be no reason to pass the law. Thus the so-called “right to privacy” can supersede any law or none, giving judges carte blanche to interfere in the political process whenever they like. But since laws protect citizens’ rights as often as they invade them, giving the Court a blanket excuse to strike laws down is dangerous, as the Court itself demonstrated eight years later when, in Roe v. Wade, it used privacy to deprive an entire class of people of the protection of the law.

Bork’s explanation was learned and sober and totally wasted. Each time Bork elaborated his views on Griswold, Biden stubbornly repeated that Bork seemed to believe that “the economic gratification of a utility company” was worth “as much protection as the sexual gratification of a married couple.” Perhaps Biden was genuinely stumped. “You have to realize Bork was talking to constitutional illiterates,” one frustrated GOP Senate staffer confided to me. “Sometimes I have a hard time explaining to them that the Preamble goes at the beginning.”


Gloves Off
The Washington Post, thanks largely to Meg Greenfield’s efforts, took a measured approach to the Bork nomination, in contrast to the prevailing hysteria. In the end, however, the Post came out against the nomination, praising Bork’s intellectual courage but ultimately opposing him on the grounds that judges “must apply values, because they are confronted daily with the need to make value judgments at points where the written law provides no absolute guide.” Certainly. The question, which the Post resolutely avoided answering, is: Whose values? For Bork there is only one possible answer if we are to retain a government of laws and not men: the values of the Framers.

Contemporary liberal jurists, of whom Justice Brennan is the archetype, in effect despair of interpretation, claiming, inexplicably to anyone who has ever read the text, that the Constitution, consists of lofty generalities that express “our ambitions.” In their view, a judge’s job is much like a dowser’s: to find values “firmly rooted in the American tradition,” or, even more ominously, to determine “the true line of historical progress,” and rule accordingly. What Bork’s detractors fail to admit is that the ongoing intellectual debate is no longer over how to interpret the Constitution, but whether to do so.

Meanwhile, the bloody campaign against Bork may mark a historical turning-point; few conservatives talked to seemed disposed to forgive and forget. As McGuigan says, “Once the rules change, they change for everybody.” Procedural values are maintained only if both sides feel they have a stake in them. The Democrats, having successfully politicized the process of picking Supreme Court judges, will continue to do so until they are made to pay a price — either at the ballot box, or when the next nominee picked by a Democrat comes before the Senate for confirmation. Of course, one reason the Democrats have abandoned principle so gleefully may be that they don’t expect to see a Democratic President face a GOP Senate anytime soon. Time, perhaps, to hang a few scalps on the wall.