The battle lines over the confirmation of Judge Bork are drawn more sharply and bitterly than is usual because the future of some large and weighty constitutional rights is deeply in doubt. Bork’s defenders—and the judge himself—cast the nominee as a principled proponent and practitioner of judicial self-restraint. Some of his balmiest supporters even go so far as to style him a political moderate. For their part, many of the judge’s opponents see him as a closed-minded political extremist whose past statements clearly spell trouble for the interests of blacks, women and minorities generally. Criticisms of that sort, however, are likely to be unavailing because they are likely to be seen as a form of special pleading and therefore are likely to be the least effective form of advocacy. Friends of the judge, on the other hand, extol the power of his brain, but more discerning observers are inclined to focus instead on the qualities of the thoughts it has produced.
Judge Bork has been a controversial writer and speaker over the past quarter century, notably in a 1971 Indiana Law Journal article that is now well-known for its advocacy of a remarkably limited and highly questionable conception of freedom of speech. On other occasions Bork has assailed the Civil Rights Act of 1964, The Voting Rights Act and Supreme Court decisions striking down the poll tax and laws prohibiting racially mixed marriages. The judge also has criticized a 1948 Supreme Court decision which undercut the enforcement of racially restrictive covenants. On other fronts, Judge Bork is an opponent of restrictions on campaign spending, of any constitutionally-based rights of privacy, and of any constitutional mandate to require the apportionment of legislative seats among districts of equal population. Furthermore, the judge has said that since the Civil War Amendments were passed for the purpose of securing equality for blacks (an ironic contention given the positions noted above), women cannot look to the Constitution for fair and equal treatment in the face of discriminatory legislation. Also noteworthy is his position that antitrust laws should be sharply pruned and are justified only on the grounds of promoting economic efficiency (a view sanctioning the accretion of economic power that is especially dangerous when coupled with his laissez faire view of campaign finance).
owever, the minute one cites such matters as reflections of the judge’s values, he distances himself from these positions (or most of them) and chalks up the disparity to the idle speculations of an academic or to the maturing of his thought. But these are not the half-baked notions of an adolescent; they are the statements of a man now well past middle age. And, while it is not uncommon for scholars looking back at their published works to wish they had more carefully qualified what they said earlier, few people in my business have attempted to disown their scholarship so rapidly, so completely and so conveniently. Viewers of the confirmation hearings have been treated to an odd spectacle indeed: While the committee chairman has attempted to extricate himself from charges he has stolen the words of others, the nominee has attempted to evade responsibility for his own words.
Judge Bork has correctly pointed out that the role of a judge is different from that of a professor. Although the judge has promised he will not work to undo important civil liberties decisions (unless he concludes they were incorrectly decided), he tells us in the next breath that precedent is not nearly as important in constitutional law as it is in other areas.
Then there is the matter of Bork’s five-year record as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. Working from a computer printout that identified the 462 decisions in which the judge participated, I combed through the cases. Nearly 87 percent of these were occasions on which a three-judge appellate panel reached its decision unanimously. I paid particular attention to those cases where the vote was not unanimous. Because cases with a split vote tend to be occasions of controversy where clear rules of law are much less likely to control the outcome, the non-unanimous cases provide a fair test of what Bork does when the latitude for judicial choice is wide, as it invariably is in cases heard by the Supreme Court.
If Judge Bork exhibits judicial self-restraint in these non-unanimous cases, it is a highly selective restraint. He has a passion for judicial non-intervention when the interests of private individuals and public interest litigation groups (such as National Resources Defense Fund, Planned Parenthood, and Paralyzed Veterans of America) conflict with decisions made by agencies of the Executive Branch. In 26 out of 28 cases, Judge Bork voted against the individual or group and for the agency. His record reveals a virtually unbroken line of hostility to both First Amendment claims (in half a dozen cases) and efforts to compel government agencies to divulge to affected individuals negative information about them contained in government files (notwithstanding the fact that Congress has said deference to the government is not to be assured in interpreting the Freedom of Information Act).
Editor’s note: Craig Ducat is an associate professor of political science at NIU. He received his Ph.D. from the University of Minnesota. The second part of this column will appear tomorrow.