If the Mark of a ‘Good Guy’ Is Insincerity, Bork Qualifies

Bad candidates often make “good guys.” Since the Reagan Administration’s portrayal of Supreme Court nominee Robert Bork as a judicial moderate has failed to overwhelm legal scholars’ view of him as a rogue jurist, the strongest alternative case for him has been the good-guy defense. Banking on his personal appeal rather than his professional record, the Administration is dispatching him on courtesy calls to woo confirmation votes from unfriendly senators. After all, former colleagues on the Yale Law School faculty--though they may abhor Bork the judge--say that they are supporting his nomination because they like Bork the man.

But such a popularity defense generally contains its own invidious counter-arguments.

What makes the good guy remarkable is the acknowledgment that the man isn’t as nasty as his opinions: Just because my decisions may not recognize the integrity of the individual doesn’t mean that I will not extend myself personally to you. The attitude that jurisprudence is “nothing personal” was also the basis of the confirmation debate over a previous conservative Reagan nominee. On the elevation of William H. Rehnquist to chief justice, criticism of his then-extremist judicial philosophy could barely be raised without his defenders pointing out his personal popularity with court liberals. His out-of-the-mainstream dissents seemed to have the same justices-will-be-justices prank value as his standing on a piano bench at a staff Christmas party and shouting “Achtung! “

Significantly, the good-guy defense was not used to support conservative court appointee Antonin Scalia--despite his reputation for having a nice personality--because his judicial philosophy seemed to grow, in good faith, out of his Catholic-immigrant-son experience, as well as serious scholarly discipline.

The decisive trait of the good guy is insincerity. Tautologically, his refusal to accept moral responsibility for his actions relieves him of moral responsibility. But for a sudden change in the political climate, the good-guy defense would probably have worked even for a leftist like Alger Hiss, who seemed to treat his Communist activities as a hobby, though apparently he didn’t calculate for the commitment of true believers--like his nemesis, Whittaker Chambers. In still another political era, white Southern lawyers who accepted civil-rights cases could avert social reprisals from their country-club peers if they pretended that they were doing it only for the money. And for a time the good-guy defense acquitted President John F. Kennedy among Southern segregationists, who did not begin to truly despise him until he belatedly demonstrated the “sincerity” of his campaign promises to enforce civil rights.

Alone among the Yale law professors informally polled in a New York Times story, Burke Marshall said, in effect, hell no, he wouldn’t support the Bork nomination. As the civil-rights chief of the Kennedy Justice Department, he saw firsthand that, to its victims, bad law is bad law--whether enacted out of conviction or good-guy indifference. Accordingly, Marshall helped birth the Civil Rights Act of 1964, which contained a public-accommodations section that Bork argued at the time was unconstitutional. He recanted that position 10 years later, on joining Richard M. Nixon’s Justice Department.

The back-up “son-of-good-guy” defense for Bork is the “smart-guy” defense. As was the case with Rehnquist, Bork’s prodigious brainpower wins testimonials from admirers and critics alike. Here, too, the underlying assumption is that he must be brilliant in order to rationalize opinions so inconsistent and seemingly arbitrary. Like the good-guy defense, the smart-guy defense has its own built-in rebuttal. A person’s intelligence per se receives inordinate praise when there are few praiseworthy fruits of that intelligence.