Thursday, November 10, 2005

If You Read Only One Book This Year . . . A Review of Robert Bork’s The Tempting of America: The Political Seduction of the Law

(**I wrote this while still in law school and published it in a law-student paper. When I pasted it here, the formatting crashed.)

"In the Past few decades American institutions have struggled with the temptations of politics. Professions and academic disciplines that once possessed a life and structure of their own have steadily succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. . . . It is coming to be denied that anything counts, not objectivity, not even intellectual honesty, that stands in the way of the ‘correct’ political outcome."

With these words Justice Bork opens his book on American jurisprudence. His introduction goes on to describe the greatest threat to the law today:

In the law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice . . . is not embodied in a statute or any provision of the Constitution. He then must choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Bork argues that these result-oriented decisions have moved holdings steadily to the left for the last half century. As a result, many Americans do not like those outcomes and are no longer “deceived by the claim that those results are compelled by the actual Constitution.” Soon the law may go the way of the press, Bork fears, losing legitimacy with a large part of the public. And conservative activism would only make it worse.

Conservatives . . . may decide to join the game and seek activist judges with conservative views. Should that come to pass, those who have tempted the courts to political judging will have gained nothing for themselves but will have destroyed a great and essential institution. . . . [T]here are only two sides. Either the Constitution and statutes are law, which means their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win.

After I read Bork’s book, I told friends there were few law courses I would not trade for it. But, to be frank, I am a conservative and expected to enjoy Bork’s opus. Yet the book should be worth the reading for anyone interested in the law. It is likely the most complete and well-reasoned statement of the conservative position (and arguably the historical “American” position) on judicial philosophy, legal practice, and several key political doctrines, including the separation of powers, federalism, and the Madisonian system.

Bork answers a likely question: “What does it mean to say a judge is bound by the law? It means he is bound by the only thing that can be called law: the principles of the text, whether Constitution or statute, as generally understood at the enactment.” He notes that the lay reader may wonder at this statement. Isn’t that obvious? “Of course, the judge is bound to apply the law as those who made the law wanted him to. That is the common, everyday view of what law is. I stress the point only because that commonsense view is hotly, extensively and eruditely denied by constitutional sophisticates, particularly those who teach the subject in law schools.”

Here, Bork argues, commonsense is sound. He quotes Justice Story. A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill or visionary speculation.” Bork resumes: “Story might have been addressing today’s constitutional cognoscenti, who would have judges remake the historic Constitution from such materials as natural law, conventional morality, prophetic vision, the understanding of an ideal democracy, or what have you. No matter the base from which they start, they all wind up in the same place, prescribing a new constitutional law that is much more egalitarian and socially permissive than either the Constitution or the American public. That, surely, is the point of their efforts.”

Some of my most engaging law school professors saw everything as relative, and the law as an evolutionary force, changing the times and changing with the times. Any appeal to original intent is an appeal to something not only irrelevant but also unknowable. (Of course, the original intent of a contract is evident from the four corners of the document, right? But that’s not possible with the Constitution apparently, nor are the numerous speeches and ratifying conventions any help.) Bork concedes a distinction. For hair splitters, sure—original intent “calls for speculation.” But original understanding is not at all hard to determine. The reason so many are unhappy with the doctrine of original understanding is not—as they claim—that they have philosophical questions about epistemology. Activists deride appeals to original understanding because they fear such a rule would never have won for them the great civil rights cases of the late 20th century—and those they hope yet to win.

But Bork disagrees. Here his book becomes a tremendous resource. He examines the history of the Court and most of the great cases, explaining that many revisionist cases could have reached the same results through an appeal to original understanding and would have strained logic less in doing so. Brown v. Bd. of Education is the most stunning example Bork cites of a case in which the Court felt compelled to look outside the original understanding of the Constitution when it did not need to. The result is that the century’s most immediately, even dangerously controversial decision was based on an argument few could accept. It need not have been this way. Bork’s discussion of the this point alone will be worth the price of the book for some.

Bork has no raging desire to see the poor cases overturned, however. Out of respect both for stare decisis and the integrity of the Court itself, Bork would not even reverse the most badly reasoned case of the 20th century, Roe v. Wade. To be more precise, Bork places Roe in a group of cases “so embedded in the life of the nation, so accepted by society, so fundamental to the . . . expectations of individuals . . . that the result should not be changed now.

This brings up another interesting issue. Bork makes the case for judicial integrity, the most important commitment of any judge. The temptation to fudge the law to help bad facts is one the judge must resist, because any time the law is compromised, it is weakened. The judge’s task is simple:

In a constitutional democracy the moral content of law must be given by the morality of the framer or legislator, never by the morality of the judge. The sole task of the latter—and it is a task quite large enough for anyone’s wisdom, skill, and virtue—is to translate the framer’s or the legislator’s morality into a rule to govern unforeseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist.

Who is Robert Bork to talk about a disciplined judiciary, about personal or professional integrity, some will ask. The second half of his book addresses just that. He describes in detail the nomination process he endured and the lies told about him in the campaign to keep him off the bench. For example, his position in a number of cases was exactly the opposite of the way it was described in the hearings. He received a ringing endorsement from the ABA before taking a seat on the D.C. Court of Appeals. Once there he decided a number of cases in favor of women and minorities. But in the Senate confirmation hearings he was asked, “Why are you against women?” He repeatedly directed Senators Kennedy, Biden, and others to the pages in the opinions proving he had in fact held exactly the opposite. But as they say, a lie told often enough begins to seem true—and such was the case with the lies told about Bork. During one private moment of peculiar candor, Ted Kennedy shook Bork’s hand and said, “Nothing personal.” Then they vilified him.

Bork’s book then, is his public defense. In that it is unique. Not only did the Reagan administration do little to defend him, so unprepared were they for the unprecedented campaign to destroy a judicial nominee, but Bork himself made no public defense.

The public interest generated by the enormous campaign against me caused dozens of reporters to seek interviews, and television and radio talk programs repeatedly asked me to appear. Despite the unanswered hostile campaign, I decided that it was improper for a judicial nominee to wage a counter campaign by discussing his views on substantive issues anywhere before the Senate, even if it meant letting slanders go unanswered.

Toward the end White House strategists plead with Bork and his wife to appear on a Barbara Walters special. “But . . . we decided we would rather go down than compromise ourselves with what would be, in effect, a personal media appeal. White House advisors thought this a serious mistake; some thought it cost him a seat on the bench. “However that may be, I continue to think that was the right decision.

The entire process of a judicial confirmation was politicized more than ever before in America’s history, but at least I did not contribute to that.”


Blogger Steven Wales said...

By the way, I proudly admit that much of what I've written elsewhere on this blog I learned from this book. What is so sad is that--as you might have guessed--precious little of this is taught in law schools today. But it is there in subtle ways for those who look. (It's as if the figures are gone, but shadows remain. Like the faint impression left on the grass after picnicers go home....) Soon, maybe, even the shadows of these doctrines will fade from view.

On a related note, I just discovered that Bork has written a similar book analyzing the trend toward judicial activism around the world: Coercing Virtue: the Worldwide Rule of Judges.

2:28 AM  
Blogger J Holden said...

sounds like a man of integrity

and ted kennedy, the exact opposite

6:20 PM  
Anonymous s007 said...

You stated: "Soon the law may go the way of the press, Bork fears, losing legitimacy with a large part of the public."

I think we're already there

9:32 AM  
Blogger Steven Wales said...

Well, yes and no. The law--and particularly the courts--have lost ground, certainly. But I would not say it's anything like the mass exodus we are seeing from allegiance to the mainstream media. Those guys are like men on a slippery slope trying not to fall. Brings to mind a vivid set of images from Jonathan Edwards....

1:56 AM  

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