Q: When Is an Extremist a Moderate? A: When Reagan Sells Bork to the Senate

<i> Burke Marshall, Nicholas de B. Katzenbach Professor at Yale Law School, was assistant attorney general in charge of the civil-rights division from 1961-1965. Bork was his colleague at Yale from 1970-1973 and again from 1977-81</i>

This fall we’ll witness an unprecedented event in the process for the selection of a justice of the U.S. Supreme Court. For virtually the first time in 200 years of U.S. constitutional history, the President has nominated someone to the court precisely because of the candidate’s extreme views on the meaning and method of judicial interpretation of the Constitution.

Having put forward this nomination for that reason, the Reagan Administration is now insisting it has, in effect, perpetrated a fraud on the very constituency who were its customers for the nominee, the constituency that had been taught to believe the nation’s social ills were caused by Supreme Court decisions over the last three decades. Judge Robert H. Bork, whose nomination is at issue, is now portrayed by those who chose him as a closet centrist, a secret moderate whose views are part of a constitutional continuum, rather than a departure from it.

Which is the true Bork has thus become the central issue for the hearings starting Sept. 15. For it seems unbelieveable that the Senate will give its consent to the Bork revealed by his academic writings over the past 25 years--characterized as they are by bitter attacks on the works of the Supreme Court in protecting personal liberty under the Constitution.

It is, of course, true that Presidents always try to appoint to the Supreme Court lawyers whose general judicial and political policies are thought to be close to their own. The efforts of the Reagan Administration to turn this tendency into a rigorous and systematic search for lawyers and scholars like Bork, and to extend the search and standards downward to nominations to the federal appellate and trial courts, have been well documented--and boasted of by the Administration itself.


The experience of those involved with similar matters in past administrations, even peripherally, is quite in contrast. During the Kennedy Administration, when I worked in the Justice Department, the President nominated two men to the court--Byron R. White and Arthur J. Goldberg. Both were known personally by the President, but I think it fair to say neither had a developed judicial philosophy, and certainly their judicial behavior--Goldberg’s only briefly, but White’s over what is now 25 years--was often quite dissimilar. Nothing was done in those days to test their constitutional theories or judicial policy, and the only attempt at that kind of prediction for the lower courts was to try to make sure, unsuccessfully in some cases, that nominees would follow the Supreme Court’s command in the school desegregation cases. I believe the same limited effort was made by the Eisenhower Administration.

It was Richard M. Nixon who brought the court most recently and strongly into presidential politics--until now. But his appointees were not rigid in their developed views, as is Bork--although Nixon was reportedly unable to find a woman nominee conservative enough for him.

Appointments to the Supreme Court have thus become political events. The rigorous political or policy test imposed by the Reagan Administration warrants--indeed demands--examination by the Senate, and either acceptance or disagreement with it. The issue posed is simple enough to state, even if its resolution may be difficult for each senator. It has two parts. The first is whether the nominee is in fact the Bork revealed in his writings of the last quarter-century, or is instead a more moderate, more flexible, more open-minded man in the model of, say, Justice Lewis F. Powell Jr.--whom he has been named to replace. The other is, if he is the former, whether each senator voting on the issue can accept and endorse his views, in the main if not in every detail.

There is, of course, no way of definitively answering the first question. It may be that between now and a vote on his confirmation, Bork will so qualify and modify his stated views that it will be unclear to some senators who the nominee is. Yet two things are clear. One is that his views to date have been unyielding, consistent and quite coherent: He has recently repeated that a 1971 article, his only substantial piece on constitutional theory, still embodies his positions. Any second thoughts he has admitted have been crabbed modifications of secondary positions that proved, over time, impossible to sustain.


The second is that his constitutional theories, though internally somewhat contradictory, are not complex. On the contrary, his place as a constitutional law scholar rests almost entirely on a deserved reputation for sarcastic, acerbic and uninhibited polemics against all the important work of the Supreme Court over the past 30 years and, in some cases, a far longer period. Yet there is no reason to believe, from my personal or professional contact, that Bork has had any private doubts about his positions.

It will remain, therefore, for the Senate to decide whether Bork’s views are sufficiently acceptable as constitutional policy to permit a vote for confirmation. These views are now quite well-known, and involve many specific issues, but they can be summarized rather easily. Bork is almost uniformly opposed to the degree of judicial protection historically extended by the Supreme Court to personal freedoms and individual liberty. On some, he believes no protection at all is warranted. On these issues, he views himself as majoritarian--that is to say a believer in the proposition that it is a proper exercise of government power, and not the court’s business, to tell people how they should behave in their personal affairs or what is appropriate moral conduct.

On the other hand, Bork appears to be almost uniformly opposed to Congress exercising majoritarian power when it interferes with presidential actions. Thus he thinks it unconstitutional for the Congress, as representatives of the people, to check and balance the President’s behavior in foreign affairs, including military adventures possibly leading to war, in his surveillance of people in the interest of what he considers national security and in decisions about whom to prosecute and whom not to, including decisions involving his own people--now statutorily made by independent counsel and formerly made by the special prosecutor during Watergate.

Bork’s views on social issues cover much of daily life. He believes, for example, that the First Amendment’s freedom of speech clause protects only explicitly political speech. Recently he has somewhat broadened his view, to include certain scientific and moral discourse. But he apparently excludes literary, artistic and social writing from any protection, and would permit sweeping censorship of works with a sexual content, or containing language not appropriate for a tea party, even when explicitly political. He particularly disapproves the now-revered views of Oliver Wendell Holmes and Louis D. Brandeis protecting speech that might lead to unlawful behavior, such as the sit-ins of the civil rights movement.

Further, he repudiates the accepted doctrine that the Constitution to some degree protects a right of privacy in personal lives. His position rejects the protection of a pregnant woman’s decision whether or not to have a child--and even the right of anyone to use contraceptives--but Bork’s rigorous logic goes further. He believes the court wrongly decided cases protecting individuals from compulsory sterilization or the choice of sending one’s children to private schools or having them taught a foreign language there. His ideas on religious freedom have been less fully stated. He has, however, vigorously criticized Supreme Court decisions that keep the state out of religious matters, particularly in the schools, and also those protecting the private exercise of religion.

There are other special issues that may be examined, particularly involving the 14th Amendment’s equal protection clause, which Bork says prevents only racial classifications by the state, and has nothing to do with discrimination based on other characteristics such as sex, national origin, sexual orientation, poverty or perhaps even religion.

But it is not the specific items that are at stake; it is instead the entire cession of this area of decision-making to combat among the interest-oriented political factions that James Madison and Alexander Hamilton so feared, and that the Constitution was created to prevent. Bork’s vision of the Supreme Court’s limited role would reopen the ugliness, turmoil and divisiveness of majoritarian prejudice in innumerable areas that had been effectively closed for decades.