Bork Believes in the Words : Reliance on the Constitution Doesn’t Make Him an Ideologue

There is an unfortunate trend these days to further erode the distinction between law and politics. The formation and enforcement of laws is, of course, connected with the political process. On the other hand, the interpretation of the law should be divorced from the political process as much as possible. The problem is that the Constitution has, more and more, become an arena for carrying on political contests. Where proponents see little hope of legislative success, they have sought to cast their claims in constitutional molds. As a result, there are those who are more concerned with a judge’s politics than with his or her view of the law and the role of the judiciary in our form of government. What is even more alarming is the growing tendency to interpret judicial decisions in political terms that only take account of results.

The blizzard of commentary surrounding the nomination of Judge Robert H. Bork for the vacancy on the Supreme Court has obscured the legitimate issues and served to focus attention on the irrelevant and unknowable. We do not and cannot know whether Bork’s heart was pure on the day he fired Archibald Cox. What we can determine is whether his conduct was within, and indeed required by, the law. We cannot know precisely how Bork, now on the U.S. Court of Appeals, will vote on a variety of issues that will eventually appear before the Supreme Court. What we can reasonably expect to understand is Bork’s opinion as to the nature of the U.S. Constitution and his approach to interpreting it.

In a 1986 article in the San Diego Law Review, Bork sets forth his views on the proper role of the judiciary and the approach that it ought to take to constitutional interpretation. He discusses the problems created by the use of a concept like the “right of privacy” as the criterion for determining the result in Griswold vs. Connecticut. “My point,” Bork says, “is simply that the level of abstraction chosen makes the application of a generalized right of privacy unpredictable.” What concerned Bork was the trend toward generalization in judicial decisions even when the Constitution is silent on an issue, and what this might lead to as a source of unstructured judicial power.

The whole tenor of Bork’s article is strongly reminiscent of the late Supreme Court Justice Hugo Black’s dissent in the Griswold case. “Privacy,” Black said, “is a broad, abstract and ambiguous concept which can easily be shrunken in meaning but which can also, on the other hand, easily be interpreted as a constitutional ban against many things . . . .” Black’s view of the manner in which the Supreme Court ought to interpret the Constitution has much in common with Bork’s as expressed in the San Diego Law Review article.

Both jurists take the position that the function of the Supreme Court is to interpret the Constitution by reference to the words that appear in it. Both believe that the words can and ought to be limiting factors on the discretion that judges have in making their decisions. Yet there is a growing group of law professors who think otherwise. And there appear to be a number of senators who believe that political ideology is the determining factor in judicial decision-making.

But political beliefs held before appointment to the Supreme Court have not been reliable predictors of judicial behavior. Hugo Black’s political background (which included membership in the Ku Klux Klan) would hardly have predicted a judicial record of preserving individual rights. Earl Warren’s performance surprised more than a few people.

More is known about candidates who have had judicial experience than those who have been selected from the political arena. But what is it that we know about current or former judges?

What we know is whether they view the law as a rational enterprise and whether, as judges, they are of the opinion that they must give good reasons for the decisions that they make. We can discover whether they believe that a judge is morally superior and, therefore, morally justified in substituting his or her opinion for the opinions of legislators or the general population. In short, what we can find out, and what we should want to know, is the degree to which the candidate for judicial office is committed to the rule of law.

It is appropriate to ask a political candidate what his or her opinions are in respect to abortion, prayer in schools, gay rights or any other matter within the political domain. What we should ask the candidate for judicial office is his or her opinion with regard to the law on these matters, and whether the candidate is prepared to faithfully apply the law. It is important to determine whether the judicial candidate differentiates between his preferences on matters of social policy and his view of the law on these same issues.

Bork has articulated his views on these matters in numerous law-review articles and judicial opinions. What he has said is neither unique nor radical. As previously noted, his position on constitutional interpretation bears striking resemblance to Hugo Black’s. The view that a judge must justify his decisions by reference to the established meaning of the words does not justify calling him a right-wing ideologue. The nomination, and confirmation, of Judge Bork will not mean substantial change in life as we know it, no matter who “we” are.