Let me say right out that Robert Bork is my friend. And, pretty soon, the whole country is going to see him up close, on television, and come to know him as I know him. I think he’s going to have the same effect Ollie North had. As Supreme Court nominee, I think he’s going to be a national hero.
On Ollie North, the national press allowed the left to dominate the news for six months. (The press always misleads the left.) Then, when the public met the real Ollie North, face-to-face on television, there was a thunderclap. North was not like his prior image.
Bob Bork is one the of two or three most brilliant people I know. Like Falstaff, he is also a lot of fun, friendly as portly men often are, easy going and witty. Many liberal journalists know him well and like him a lot (which is why a good many have risen to his defense). If to have a liberal spirit means to be generous in judgment, attentive to facts and to nuance, careful about evidence, and open to new ideas and serious argument, Bob Bork has a classic liberal spirit.
The press has a reportorial function and relishes extreme dramatic statements. The wild left of the Democratic Party, therefore, makes a lot of news. And seeing themselves on television every day, and in the papers, gives the wild left the illusion that it represents the public. Reality is not so kind. There are four reasons why the wild left, in going ballistic about the Bork nomination, has already hurt the Democratic Party.
(1) The public is going to get the chance to see Bork face-to-face on television. Bork’s cool intellect and affable manner are going to bowl the people over, and make Joe Biden’s company look like intellectual pygmies. When the public asks itself: “Who is a better guardian of the Constitution, Yale and Chicago constitutional law scholar Robert Bork, or the special interest groups that have ganged up on him?”, the people will feel that, once again, the hysterical left has wildly exaggerated.
(2) The Democratic Party of today will look limp, compared to its heroes of thirty years ago. Did the Democratic Party of thirty years ago stand for “ideological balance”? It did not. It stood for presidential leadership, and a Court that in the long sweep of history winnows the wisdom of the people. It wanted a Court in tune with the legislature. It wanted first-class talent, the smarter the better. The Democratic Party, in those days, had a clear agenda for the Court.
If a Democrat is elected in 1988, will a Democrat seek “ideological balance”? Obviously, he will not. The notion that the Court must show “ideological balance” is a new invention, fashioned from hysteria, cut to false pretenses.
But in 1988 a Republican is likely to be elected. (In the last five presidential elections, the Democratic candidate has won only 21 percent of the electoral votes.) If a Republican is elected in 1988, will the Democrats want a Court given to “judicial restraint” — or a Court given to “conservative activism”? If it wants the former, Bork is the best justice it can possibly find.
(3) The Democrats control 61 percent of all U.S. legislators, and are best served by a Supreme Court that respects the Constitution and the constitutional role of legislatures. Bob Bork is not a conservative activist, who wants to “balance” liberal activists. He wants to follow the Constitution and legitimate law, independent of his personal preferences.
On television, Bill Moyers asked Judge Bork (May 28, 1987) where he stood on conservative activists and liberal activists on the Court. Bork replied: My own version of “judicial restraint runs right across those values. That is, it’s neither liberal nor conservative.”
Moyers replied: “Restraint requires that you do what?” Bork: “To stick to the law as it was intended to be applied…”
To my mind, the best traditions of the Democratic Party require just that: Judges who defend and protect the Constitution, not personal preferences. For the near future, Democrats need judges who respect the legislatures Democrats control.
(4) The legality of abortion is protected today by state laws. The wild left is arguing that if the Supreme Court finds Roe v. Wade lacking a constitutional base (as many constitutional experts, right and left, think that it does), abortion will be outlawed. But that is incorrect. Almost every state today has passed laws making abortion legal. Even if abortion is not a “constitutional right,” legislatures have made it legal.
The irony is that many Democrats — such as Governor Mario Cuomo of New York — say that abor¬tion is “personally offensive” to them but that “the law” permitting abortions must be observed.
Judge Bork has never been so inconsistent. He also holds that the law must be observed, but has not voiced personal reservations such as those of Governor Cuomo.
I myself am more opposed to abortion than Judge Bork has ever claimed to be. But on the Supreme Court, I want Justices of flinty constitutional integrity, not those who share my own political judgments. This is a pluralistic society, after all. Justice Bork will expect political argument on abortion to go on — for and against. That is an issue for legislatures to decide, not judges.
In short, the opposition to Judge Bork rests on massive illusions. These illusions will be shattered by the hearings on his nomination. Judge Bork is about to become a hero to those Americans who love and respect the wisdom of the Framers of the Constitution, who set the Courts above partisan passion and the hysteria of political faction.
The public will soon see the real Judge Bork, beyond the flagrant character assassination of the extremists of the left. They will come to love and to respect him as his friends do.