Bork Seeks Justice in ‘The Tempting’

In this town of reproach and recrimination, it seems increasingly clear that publishing well is the best revenge. In that spirit, one of the latest to join the parade of let-me-tell-you-my-side authors is Robert H. Bork, the former appeals court judge who was nominated to the Supreme Court by President Reagan but was rejected by the Senate.

His version of the events is contained in “The Tempting of America,” to be published in November by the Free Press.

But at a preview-of-coming-attractions press briefing at the annual convention of American Booksellers Assn. in Washington over the weekend, Bork--the target of the first all-out, national political campaign to defeat a Supreme Court nominee--insisted that his book was more about the general “tendency to run law into politics” than about his own particular unhappy experience.

His unsuccessful bid for a seat on the nation’s highest court forms only a part of his book, Bork said. The contentious debate over his nomination is simply an example of what he sees as this country’s increasing, dangerous tendency “to achieve political responses through the courts.”

“The consequence,” Bork writes, “is a steady erosion of the most basic American right, the right of the people to govern themselves when the Constitution does not say otherwise.” By politicizing the courts, Bork elaborated, Americans have eaten away at “the people’s right to legislate the laws we want to live by.”

No better example comes to mind, Bork said, than the ongoing furor over abortion. As a federal judge in Washington, he recalled, “my office overlooked Pennsylvania Avenue.” Twice a year, “there was a march, once by pro-abortionists and once by anti-abortionists.”

But as the protesters proceeded up Capitol Hill, “they went straight past both houses of Congress with nary a pause, and straight to the Supreme Court,” Bork said.

“So far as they were concerned, for their purposes, the Supreme Court was their branch.” Both sides, Bork said, “regard the court as in large part not a legal institution, but a political body.”

To Bork, “that means that a major heresy has entered into the American political system.” The constitutional sacrilege, Bork contends, is “the introduction of the denial that judges are bound by law.”

Bork’s constitutional expertise was one of the qualities that Reagan said figured strongly in his decision to nominate Bork for the Supreme Court and to support Bork’s decision to tough out his bitter, ultimately unsuccessful five-month fight for the position in 1987.

But his rigidness and his archconservative views frightened many people, inside and outside the Senate. Many feared his effect on Supreme Court decisions because they said he already was too arrogant when contending that his interpretations of the law were the ones that best matched the original intent of the framers of the Constitution.

“The Founders of this nation thought the primary means of assuring our liberty was not the courts,” Bork said this weekend, “but rather the assignment of different functions to different branches of government.”

Whereas the Constitution specified that laws were to be made by legislators who were elected by the people, not judges appointed by the President, Bork said, “a lot of Americans now simply assume that the courts should produce results they like rather than sticking to the Constitution.”

‘The Great Temptation’

Though without its subtitle, “The Political Seduction of the Law,” a book called “The Tempting of America” does sound rather like a collection of regional dessert recipes, Bork maintains that mass assumption explains “the great temptation,” expecting “political results from the courts.”

In his own confirmation hearings, “many senators wanted political results from the courts,” Bork said. “They had what they accused President Reagan of having, and that is, they had a litmus test.”

The angry sessions were marked by a level of communication that was “not very high,” Bork said. “We talked right past each other.”

On the matter of Bork’s leanings on possible Supreme Court action on the abortion issue, “I was told by two Republican senators that they would vote against me because I might vote to overturn Roe against Wade,” Bork said. “I was told by two Democratic senators that they would vote against me because I might not vote to overturn Roe against Wade.”

But this “tempting,” or political manipulation of the courts, long predated his attempt to secure a seat on the Supreme Court, Bork said. “It started at the very beginning of the Republic,” he said.

Not Just a Liberal Sin

“Nor is it a liberal sin,” he went on. “Conservative courts have done the same thing. But it is illegitimate no matter who does it.”

In large part, Bork blasts law schools for undermining what he describes as “constitutional legitimacy.” With a wave of a beefy arm, Bork asserted, “The majority opinion in the law schools today is that the Constitution is not law.”

As he writes in his book, “A new generation of law school professors and other elite groups no longer trust the people enough to let them decide what our laws should be.”

Among consequences of this trend toward politicization of the courts, Bork said, is that “we may expect (judicial) confirmation battles that are increasingly bitter. We may also expect a constitutional law that lurches suddenly in one direction or the other.”

Constitutional law, in short, Bork said, has come to be seen as “a political weapon.”

Book on Legal Theory

Now a resident scholar at the American Enterprise Institute in Washington, Bork said he has devoted the last 1 1/2 years to research, lectures and to writing his book. Much of it was turned out aboard airplanes on his laptop computer.

“At bottom,” he said, his new book is “about legal theory.” Nevertheless, it will tell his side of the story of his battle with the Senate.

“Of course,” Bork declared with the same bombastic assertiveness that became familiar in the lengthy confirmation hearings.

“Well, I wouldn’t want anyone else to tell it, would I?” Bork challenged. His furry eyebrows were arched decisively. End of discussion.