The Tempting of America

by Robert H. Bork

  It is a sign that an important part of this society has accepted, or become resigned to, both the values and tactics of the new left that assaultive rhetoric of the kind Bickel describes is now allowed to pass with little resistance or comment from the media and other institutions of the intellectual class.

  People who are alienated obviously will not respect the basic institutions of a society they regard as illegitimate. Lectures about the right of self-government, judicial restraint, and the separation of powers will seem irrelevant if not reactionary. Thus Bickel also noted that such people prefer an activist, imperialistic Supreme Court as a means of displacing democratic choice by moral principle.20 This explains why it is that the intellectual left reacts with fury when its influence with the courts is threatened. The rise or, more accurately, the resurrection of a jurisprudence of original understanding threatens this “natural order,” hence it is illegitimate and may be assailed.

  As our cultural war intensifies, it is necessarily reflected in our politics. It is obvious that our parties are becoming increasingly polarized on social issues, especially at the level of presidential elections, which means that the two parties are coming to represent opposite sides of our cultural class warfare in their political struggles. That is why George Bush attacked Michael Dukakis on the symbolic cultural and class issues of the pledge of allegiance and the Governor’s pride in being a “card-carrying member of the ACLU.”

  That, I think, was why the groups of left-liberalism came together in an enormous coalition to oppose me. I had been, of course, an academic and a professor of constitutional law for a number of years and a dissident to the left orthodoxy that prevails in the academy. Perhaps the fury is explained partly by the feeling that I was a traitor. If the philosophy of political judging is a heresy in the American system of government, it is the orthodoxy of the law schools and of the left-liberal culture. I would have done well to remember that in the old days nobody burned infidels, but they did burn heretics.

  Yet in the final analysis, the furor and the venom were less about me than about the issue of whether the Court would become dominated by the neutral philosophy of original understanding and thus decisively end its long enlistment on one side of the war in our culture. As Time said, “All at once the political passions of three decades seemed to converge on a single empty chair.”21 That battle is over but the war in both our legal and general culture goes on. There will be more blood at the crossroads where law and politics meet.

  18

  Effects for the Future

  What does the political campaign against my confirmation promise for the future of the nomination process? What does the possible permanent deterioration of that process mean for the future of the Court and the Constitution? It is too soon to be certain, but some important tendencies are apparent.

  Some of what happened is specific to my situation and not necessarily instructive. I was nominated by a President who had lost much of his political power on Capitol Hill both because of the approaching end of his term and because he had been badly damaged in the Iran-Contra affair. This was an opportune time for the Democrats to administer a defeat to Ronald Reagan. (The President himself generously took that view in my conversations with him, but I prefer to take some of the credit and to think that I qualified as a target in my own right.) The Republicans, moreover, had lost control of the Senate in the 1986 elections. Finally, the liberals, who have always regarded the federal judiciary as their particular ally in government, needed to stop my confirmation in particular. Because of my writings I had become perhaps the most visible proponent of adhering to what the Constitution actually says and of pointing out that where the Constitution is silent, the people must decide through legislation. That view is anathema to liberals who have come to view the courts as the branch that will enact their policies when legislatures won’t. Quite aside from the effect of my vote on the Court, I was a symbol that they needed to destroy. They needed to prove that a liberal imperialistic Court is legitimate and that any other view is outside what they insist is “the mainstream.”

  A political attack of similar dimensions may or may not happen to future nominees, but even so it seems likely that the way the campaign and the hearings were conducted will have long-term effects—effects on the judicial nomination process of the future, effects upon the substance of our law, particularly our constitutional law, and effects upon the intellectual life of the law.

  Because I had written on relevant subjects, I was subjected to intensive questioning about what I had said years before. Some of the senators regard this as a precedent for inquiring into the nominees’ views even if he has not written or otherwise created a track record. The confirmation hearings to which Justice Kennedy was subjected are hardly conclusive on the question of how the Senate and the Judiciary Committee will approach these matters in the future. Kennedy was questioned about his views and felt obliged to give answers. The fact that he was permitted to give quite general answers does not mean that others will be. The Senate cannot stage too many of these circuses consecutively. Some senators, particularly the Southern Democrats, knew they eventually had to confirm a nominee perceived as being conservative. Moreover, the activist groups that had spent millions and months in a hysterical campaign against me could not reach that peak of frenzy twice in a row. When some of the groups wanted to mount such a campaign against Justice Kennedy, one senator said, “Nobody wants to go through that again. There’s just too much blood on the floor.”1 But, after some time has passed, they may well be able to mount such a campaign against a future nominee.

  The greatest impact of what occurred, however, may not be simply the precedent set but what the knowledge that such a campaign is always possible will do to the calculations of other actors in the process.

  The senators are now accustomed to insisting upon answers to doctrinal questions. If they continue that practice, they will effectively compel nominees to make campaign promises or face the possibility of rejection. It is amusing that some senators claimed that the White House imposed a litmus test for the President’s nominees. No one in the Administration asked me a single question about my views on any topic of law. They were satisfied that they knew my approach to judging. By contrast, various senators not only asked my views but insisted that I adopt what they thought the correct position. At one point we counted about seventeen propositions that senators wanted me to agree to, some of them highly controversial. I did not agree to them and lost votes as a result. If senators are able to get future nominees to agree, the Senate and not the Supreme Court will come to control the substance of our constitutional law. Perhaps “control” is too strong a word, but the Senate will certainly influence Supreme Court decisions in a variety of areas. That is not our constitutional form of government. If the Court has often erred by encroaching upon the legislative domain, it is equally inconsistent with the American constitutional design when the Senate encroaches upon areas left to the legitimate authority of the Court.

  But there is another way in which this episode may affect both the course of the law and the intellectual life of the law. It is impossible to know how many opinions, articles, and books will be written differently because of this episode. That some will seems certain. My 1971 article in the Indiana Law Journal2 was, even before the hearings, one of the most discussed and cited law review articles in our history. It accomplished what I, as a professor, had hoped: It generated debate and fresh theoretical inquiry. But despite its explicitly tentative and speculative nature, and despite years of a subsequent record in public service, that article, in badly misrepresented form, became the single most effective weapon used against me. I remain glad that I wrote it. Most of it still seems to me entirely correct. But it is possible to wonder what the effect will be on men and women who observed the political use made of an academic writing.

  In the short run, the pool of potential nominees is likely to shrink and change in composition. A president who wants to avoid a battle
like mine, and most presidents would prefer to, is likely to nominate men and women who have not written much, and certainly nothing that could be regarded as controversial by left-leaning senators and groups. People who have thought much about the role proper to judges are likely, however, to have written or spoken on the subject. The tendency, therefore, will be to nominate and confirm persons whose performance once on the bench cannot be accurately, or perhaps even roughly, predicted either by the President or by the Senate.

  In the longer run, the anticipation that campaigns such as this may be waged is likely to affect both the course of the law and the intellectual life of the law. There are in this country a great many men and women who are potential Supreme Court nominees; there are a great many more who imagine that they are potential nominees; and many more than that who may be unwilling early in their careers permanently to rule out the possibility of a federal judgeship. It is quite conceivable that some lower court judges may be affected in the decisions they make and in the opinions they write. The panel’s decision and my opinion in American Cyanamid,3 the case of the women given the option of sterilization, was, for example, ruthlessly misrepresented. Perhaps a judge faced with a similarly exploitable issue will decide the case the other way and write an opinion filled with popular sentiments. I am sure most judges will not consciously yield to that temptation, but the career hazards involved in deciding a case according to the law ought not even be in the back of any judge’s mind. Now, I fear, that is inevitable.

  Lawyers and professors have been encouraged to think twice or three times about what they write. Criticizing the reasoning of a politically popular decision, particularly one popular with the senators and activist groups of the left, may be a significant hindrance to attaining a career on the bench. I have already learned of instances of lawyers withdrawing articles from magazines for this very reason. One magazine had two such episodes. One lawyer withdrew an article he had submitted altogether, explicitly on the grounds of my experience, and the other, at last report, was resisting editorial changes that would make his points clearer.

  My nomination did not, of course, create these trends. It merely brought them into the open in a way that had never previously occurred but was bound to happen sooner or later as conservative presidents, armed with the nomination power, begin to threaten the liberal hegemony over the courts. This book has traced the increasingly political nature of the Supreme Court, which reached its zenith with the Warren Court, and the increasing, by now almost overwhelming, politicization of the law schools, where much constitutional scholarship is now only politics. When the Court is perceived as a political rather than a legal institution, nominees will be treated like political candidates, campaigns will be waged in public, lobbying of senators and the media will be intense, the nominee will be questioned about how he will vote, and he will be pressed to make campaign promises about adhering to or rejecting particular doctrines.

  This is a logical development as law becomes politicized. Why, then, since the Warren Court began over thirty years ago, did the development not occur sooner? One answer is that it did, but some earlier battles, while essentially political, were not overtly so. Judge Clement Haynesworth’s defeat in the Senate was very largely political but was presented as concern about a quite trivial ethical matter. The old forms and procedures had considerable staying power because to engage in ideological battle is to admit publicly that the Court is at least partially politicized and that you accept that condition. In my case, after the most minute scrutiny of my personal life and professional record, all that was available to the opposition was ideological attack, and so politics came fully into the open. I had criticized the Warren Court, and this was the revenge of the Warren Court.

  Though I hope it is not true, the forms and restraints of the Senate confirmation process in which the nominee was judged on professional ability and integrity alone have probably been weakened. It will be easier in the future to be explicitly ideological in support of or opposition to a nominee. But whether that ideological testing is overt or covert, it will continue so long as courts are seen as political. And they will be seen that way so long as their behavior invites such a perception.

  There seems to be no immediate prospect that the steady politicization of the law and its institutions will slow, much less be reversed. Too many people have come to see as crucial the capture of the law and its deployment as a political weapon. This explains the recent battles over lower court appointments and even over appointments to the Department of Justice. One effect of the political struggle over my nomination was to heighten awareness of what is at stake, and the effects may be seen everywhere. When the Supreme Court recently handed down rather moderate civil rights and abortion decisions, we witnessed an explosion of inflammatory rhetoric from activist groups surpassing in violence anything witnessed for over thirty years. Insults to particular Justices and threats of civil disobedience were bandied freely.

  Nor should this be surprising. We have been moving in this direction for a long time. No legal system can produce increasingly political results without at some point ceasing to be, or earning the respect due, a legal system. Groups that have been taught to see the courts as their reliable political ally, as their branch of government, react in fury when courts begin to apply law instead. The Supreme Court is our preeminent symbol of the rule of law. If the Court comes to seem illegitimate, the legitimacy of law itself declines and the moral obligation to obey it is cast into doubt. What the future holds in this respect is unclear. What is clear is that we have come close to a tipping point and we must draw back.

  Conclusion

  The Constitution has been many things to Americans. It has been and remains an object of veneration, a sacred text, the symbol of our nationhood, the foundation of our government’s structure and practice, a guarantor of our liberties, and a moral teacher.

  But the Constitution is also power. That is why we see political struggle over the selection of the judges who will wield that power. In our domestic affairs and even to some degree in our foreign dealings, the Constitution provides judges with the ultimate coercive power known to our political arrangements. In the hands of judges, words become action: commands are issued by courts, obeyed by legislatures, and enforced by executives. The reading of the words becomes freedoms and restrictions for us; the course of the nation is confirmed or altered; the way we live and the ways we think and feel are affected.

  It will not do to overstate the matter. We are an incredibly complex and intricate society and no power is without checks, some obvious and direct in operation, some subtle and intangible. But a major check on judicial power, perhaps the major check, is the judges’ and our understanding of the proper limits to that power. Those limits may be pressed back incrementally, case by case, until judges rule areas of life not confided to their authority by any provision of the Constitution or other law. We have, in fact, witnessed just that process. The progression of political judging, judging unrelated to law, has been recounted in this book. This progression has greatly accelerated in the past few decades and now we see the theorists of constitutional law urging judges on to still greater incursions into Americans’ right of self-government.

  This is an anxious problem and one that can be met only by understanding that judges must always be guided by the original understanding of the Constitution’s provisions. Once adherence to the original understanding is weakened or abandoned, a judge, perhaps instructed by a revisionist theorist, can reach any result, because the human mind and will, freed of the constraints of history and “the sediment of history which is law,” can reach any result. As we have seen, no set of propositions is too preposterous to be espoused by a judge or a law professor who has cast loose from the historical Constitution.

  The judge’s proper task is not mechanical. “History,” Cardinal Newman reminded us, “is not a creed or a catechism, it gives lessons rather than rules.”1 No body of doctrine is born fully developed. That is as tru
e of constitutional law as it is of theology. The provisions of the Constitution state profound but simple and general ideas. The law laid down in those provisions gradually gains body, substance, doctrines, and distinctions as judges, equipped at first with only those ideas, are forced to confront new situations and changing circumstances. It is essential, however, that the new developments always be weighed in the light of the lessons history provides about the principles meant to be enforced. Doctrine must be shaped and reshaped to conform to the original ideas of the Constitution, to ensure that the principles intended are those which guide and limit power, and that no principles not originally meant are invented to deprive us of the right to govern ourselves. The concept of original understanding itself gains in solidity, in articulation and sophistication, as we investigate its meanings, implications, and requirements, and as we are forced to defend its truths from the constitutional heresies with which we are continually tempted.

  Among the stakes is the full right of self-government that the Founders bequeathed us and which they limited only as to specified topics. In the long run, however, there may be higher stakes than that. As we move away from the historically rooted Constitution to one created by abstract, universalistic styles of constitutional reasoning, we invite a number of dangers. One is that such styles teach disrespect for the actual institutions of the American nation. A great many academic theorists state explicitly, and some judges seem easily persuaded, that elected legislators and executives are not adequate to decide the moral issues that divide us, and that judges should therefore take their place. But, when Americans are morally divided, it is appropriate that our laws reflect that fact. The often untidy responses of the elected branches possess virtues and benefits that the “principled” reactions of courts do not. Ourpopular institutions, the legislative and executive branches, were structured to provide safety, to achieve compromise when we are divided, to slow change, to dilute absolutisms. They both embody and produce wholesome inconsistencies. They are designed, in short, to do the very things that abstract generalizations about moral principle and the just society tend to bring into contempt. That is a dangerous civics lesson to teach the citizens of a republic. As Edmund Burke put it: