From Bork to Kennedy

1.

Judge Bork’s defeat is already history; we have since had the farce of Ginsburg’s downfall and have now the Kennedy nomination to worry about. But a second battle over Bork is under way—the battle over the best explanation of his defeat—and though I shall have to consider whether and why Judge Kennedy is a more attractive nominee than Bork was, the meaning of Bork’s loss is my central concern here. Judge Ginsburg’s destruction was sad, but it raised no issues of constitutional dimension. Of course it is absurd and embarrassing that his occasional use of marijuana several years ago while he was a law professor should be thought to have disqualified him. Smoking pot is and was illegal, and law professors should not break the law. But a professor who confessed that he broke the speed limit on occasion, or had once or twice driven after a few drinks, would not have been punished as Ginsburg was.

There were, however, more serious complaints against him. He was only a journeyman academic lawyer and had not shown any particular distinction in his brief career as a judge. He had used bad judgment as a deputy attorney general, moreover, in participating in a matter that might well have substantially affected his own financial interests. He should not have been nominated, but his unfortunate story is of no general importance beyond confirming what we already know about the hypocrisy and incompetence of the Reagan administration.

Bork’s defeat is another matter, and the argument about what really happened to him is likely, as I shall try to explain, to have serious consequences for constitutional law. We must distinguish between two aspects of that argument. The first is a question of explanation. What caused Bork’s defeat? How important, for example, was the fierce opposition of groups representing black voters? The second is a question of interpretation. What does Bork’s defeat mean? Did the American public reject Bork’s announced philosophy of original intention? If so, what alternative constitutional philosophy, if any, did the public endorse? These two very different questions are obviously connected, because we cannot intelligently consider the meaning of Bork’s defeat until we have some grasp of what factors actually caused it. So though my main interest is in the second, interpretative, question, I shall begin with the first.

When Bork was nominated last June, most commentators expected that although he would be opposed bitterly by a few liberal Democrats, he would nevertheless be confirmed fairly easily in the end. Relatively few Supreme Court nominees have been rejected, even when the Senate was controlled, as it is now, by a party opposed to the President’s. Everyone seemed agreed that a president may name justices to suit his constitutional views, and that the Senate may properly reject his choice only if it is dissatisfied with the nominee’s personal integrity or competence.¹ Since no evidence appeared to discredit Bork personally, and since he was plainly an able man, it seemed almost impossible that he would join the small list of defeated nominees. In the end, however, he was defeated by a greater margin than any other Supreme Court nominee in history. What caused that remarkable result?

Any adequate answer must give due weight to many different factors. Reagan’s growing political weakness played a part. So did the political skill of the liberal senators opposing Bork. Senator Kennedy, in particular, was extremely effective in persuading other senators who might have been expected to endorse the nomination at once to delay long enough so that arguments might have an impact publicly. Liberal political action groups decided at once to oppose Bork, and they found it surprisingly easy to raise money from public contributions to do so. They organized petitions, bought television advertising, and persuaded other groups to join in their efforts. Black groups were undoubtedly particularly effective, especially in influencing southern senators like Howell Heflin, a key member of the judiciary committee, who had been elected with 80 percent of the black vote. The nomination was lost, in part, in the civil rights marches and voting registration drives of the Sixties.

Bork’s most extreme supporters argue that the groups opposing him, which they call a “lynch mob” of “special interests,” deliberately distorted his views by calling him a racist or a moral bigot and suggesting that he approved of sterilizing women. The political campaign against Bork did indeed include misleading comment. Bork’s supporters complain particularly about a 60-second television spot narrated by Gregory Peck and produced by People for the American Way, a liberal political action fund. Though that organization knew better—it produced an excellent and scrupulously fair scholarly report on Bork’s judicial career—the Peck commercial was indeed misleading in several respects.² But the unfair advertising against Bork was matched by equally unfair advertising for him. And the advertising on both sides seems unlikely to have had anything like the effect on forming the public’s conception of Bork’s views that the Senate Judiciary Committee’s hearings themselves had.

The hearings lasted nearly three weeks; most of them were broadcast in full on public service and cable networks, and large portions were replayed on prime-time television news broadcasts. Though Senator Biden, the committee chairman, had announced his opposition to the nomination when Reagan made it, he conducted the hearings with evident fairness: Bork was not only allowed but encouraged to explain and defend his views in as much detail, and with as much clarification, as he wished. The argument and discussion of the hearings were often of extremely high quality—foreign visitors who tuned in were astounded—and were sometimes, as during a long Saturday morning discussion between Bork and Senator Arlen Specter, of academic depth and rigor.

Those who watched the hearings on television and followed the reports of them in the press seemed fascinated, delighted to join an extended seminar on the Constitution in its bicentennial year. The most damaging views about what Bork thinks—that he rejects a constitutional right to privacy in matters of sexual intimacy, for example—were learned from the judge himself. The right-wing charge, that senators and public alike were gulled by unscrupulous liberal broadcasts, is not only amusing (remember what the right did in Rose Bird’s judicial reelection campaign in California last year) but insulting, and it has no support in the record. The charge is interesting only because it suggests how fearful right-wing commentators are that Bork’s loss will be interpreted as a jurisprudential as well as a political defeat.

Other factors, beyond politics and the argument of the hearings, must have had some influence on the result. In the early days of the hearings, for example, a new issue emerged which, while not exactly a matter of personal integrity, nevertheless approached one: the issue of what was immediately called the “confirmation conversion.” Bork appeared suddenly to have changed his mind about some of his fiercest and longest-held opinions on constitutional law and theory, many of which he had repeated in speeches as recently as last January.³ To some it seemed that he was jettisoning the views that had earned him right-wing support for the nomination in order to make confirmation by a Senate controlled by Democrats more likely; and some senators speculated that this kind of flexibility might be undesirable in a justice.

Bork’s performance as a witness was in other ways not as impressive as it was expected to be. Though the White House had predicted he would prove a second Ollie North, he did not capture public sympathy, perhaps in part because he was shifting as well as defending ground, perhaps in part for the much worse reason that he seemed too dry and academic and lacking in charm.

The opinions of Bork’s peers must also have contributed to his defeat. In early September, before the hearings began, the American Bar Association’s prestigious committee which rates judicial nominees reported a split vote about Bork’s qualifications: while eight members found him very well qualified, three found him unqualified, and one was willing to vote only “not opposed.” Though more witnesses supported the nomination at the hearings than opposed it, and though Bork’s supporters included a former president (Ford) and chief justice (Burger), and three former attorneys general (William Rogers, Griffin Bell, and Edward Levi), as well as hosts of distinguished law professors and lawyers, the opposing witnesses seemed to have the better of the argument, mainly because they talked about the substance of Bork’s announced views while his supporters mainly praised his character and mental ability. But the most extraordinary and devastating judgment was delivered by Bork’s former academic colleagues: 40 percent of the faculty members of all accredited law schools in the United States signed petitions calling on the Senate to reject him.

2.

Liberal commentators and politicians insist that the Bork episode settled something larger than whether he should be promoted to the Supreme Court: that the nation also declared its will on fundamental issues of constitutional jurisprudence. The right wing seems to accept, or at least to fear, that that claim is true; nothing else could explain its savage fury at Bork’s defeat.⁴ No one thinks, of course, that the nation engaged in an actual referendum, conducted through senators’ mailbags and public opinion polls, in which a majority of Americans reported their considered opinions on matters of constitutional jurisprudence. But the public apparently sensed the constitutional importance of the Senate’s decision; and it is part of our constitutional tradition, in such circumstances, that the nation as a whole is regarded as more committed than it was before to the principles that provide the most convincing justification for what the Senate did.

We treat other political events in our history as calling for interpretation in the same sense and with the same consequence. Constitutional lawyers say that the history and the outcome of the Civil War showed a national commitment to some form of racial equality, and they mean this not as a historical explanation of the causes of the war—that would be much too crude and misleading a claim—but as a principle essential to any justification of the slaughter. There are less dramatic examples. When Franklin Roosevelt was forced to abandon his court-packing plan at the height of his political popularity, for example, lawyers offered an interpretative account of his failure: they said that the country rejected the plan in defense of the principle of judicial independence. The debate over Bork, like the debate over Roosevelt’s plan, left the public in no doubt that the issue was one of constitutional principles, and no senator could have justified his vote on any other grounds. So it is inevitable that the result, the first Court nomination defeat over a question of constitutional principle in half a century, will be treated as an event of constitutional dimensions, and that explains why it seems natural to everyone, Bork’s opponents and supporters alike, to claim or fear that the defeat will be treated as having settled something, at least for a time, about our fundamental law.

Part of what was settled seems plain enough: the country rejected the crude jurisprudence of Reagan and Meese, the philosophy Bork was nominated to embody and defend. Since the mid-1950s, when bumper stickers called for Chief Justice Earl Warren’s impeachment and Nixon began running against the Supreme Court as against a political enemy, right-wing politicians have assumed that most Americans resent the Court’s landmark decisions about race, school prayer, abortion, and the rights of accused criminals and deny the Court’s authority to make such decisions. But when Bork denounced the Court for ignoring original intention the people—the supposed victims of judicial tyranny—did not rush to his side. On the contrary, many of the positions he justified by appealing to original intention—that the Equal Protection Clause specially condemns only racial discrimination, for example, and that the Constitution, in spite of what the Supreme Court has said, contains no general right of privacy—were so thoroughly discredited in the hearings, and proved so generally unpopular, that I doubt that they will any longer be advanced even by lawyers and judges who found them congenial before. That, in itself, may significantly affect the course of constitutional law. The standard of “original intention,” as a strict and exclusive limit on the grounds of legitimate Supreme Court decisions, is probably dead.

But we must now confront a much more difficult issue of interpretation: in what way has Bork’s crude historicism been rejected? Bork’s announced philosophy, after all, has two parts. The first is jurisprudential: it takes a narrow, positivistic view of the limits of the Constitution as law. It insists that the Constitution creates no rights except those explicit in the text of the document, interpreted to express some pertinent expectation of the framers.⁵ The second part is judicial: it insists that judges must stick to the Constitution as law, that they must never invent new rights to make the Constitution better. So it is not enough to say that we have rejected Bork’s historicism. Have we rejected both parts of his philosophy? If only one, which one? It makes a great difference how these questions are answered.

Many politicians and commentators seem to accept Bork’s first, jurisprudential, thesis about what the law is, but reject his second, judicial thesis that judges should always, and strictly, enforce the law so understood. The Washington Post, for example, in a curious editorial explaining its reluctant opposition, said that Bork pushed his wholly admirable concern for the law too far, that law and justice “are not always the same,” that the Constitution has “elasticity,” and that Bork had not shown that he was willing to use a judge’s discretion to exploit that elasticity generously. On this view, even if Bork was right in thinking that the Supreme Court had no warrant in strict constitutional law when it decided, in Griswold v. Connecticut, to strike down laws prohibiting contraceptives, he might nevertheless be wrong in objecting to that decision, because such laws are so silly, and their injustice so apparent, that any justice of the right sensitivity would exercise discretion and declare them unconstitutional anyway. This also seemed to be the view of several senators who one by one, as the nomination was dying, announced their decision to vote against it. They said they were troubled that the candidate showed too little evidence of the discretion and humanity they thought appropriate to a Supreme Court justice. They thought he was too zealous in his determination to apply the law in a rigid manner.

We can reject Bork’s philosophy in a very different, indeed the opposite, way, however, by accepting his second, judicial, claim that judges have an overriding and exclusive obligation to respect the Constitution, but denying his first, jurisprudential, claim about what kind of a constitution we have. We can insist, that is, that our fundamental law consists not simply of a collection of rules read in the light of what their authors expected but also of the principles necessary to explain and justify the two centuries of official practice and judicial decisions that form our larger constitutional history.

This view replaces Bork’s historicism with a jurisprudence not of discretion but of principle. His mistake in rejecting Griswold, on this argument, was not the mistake of pressing the law too far but of misunderstanding what the law is. The Supreme Court argued, in that case, that people have a constitutional right to privacy because we cannot explain and justify our constitutional history as a whole without supposing that individuals have a right to make their own decisions about matters of personal and intimate concern to them, free from the surveillance and moral demands of their fellow citizens. Bork’s historicism is defective, on this view, because it cannot even comprehend that kind of argument. Anthony Lewis had in mind this way of rejecting Bork’s philosophy when he said that the Bork decision showed that the American people declined to take a “wizened” view of what their Constitution is.

That controversy is the nerve of the problem of interpreting Judge Bork’s defeat. Does the best justification of that event rest on a commitment to a jurisprudence of discretion or of principle? It matters whether the legal profession settles on one rather than the other answer. Discretion treats decisions like Griswold, even when it approves those decisions, as special and limited exceptions to the general rule that only rights explicit in the Constitution should be recognized. If we understand Griswold in that way, then the decision offers only a fragile hope to other groups who want their privacy protected: the hope that later judges will think common sense or compassion demands that elasticity be exploited in their favor as well.

If we understand Griswold as an exercise in principle, however, then the promise of the decision is more robust: that other groups will have the benefit of whatever principle the decision presupposes, limited and circumscribed only in ways that protect its character as a genuine, nonarbitrary moral principle. In Bowers v. Hardwick,⁶ the Court refused to extend to homosexuals the principle of privacy it had recognized in Griswold. The contrast between the two approaches we are considering, discretion and principle, is evident in the difference between the two main opinions in the case. Justice White, writing for the majority, suggested that Griswold and the earlier privacy cases be treated as not “much more than the imposition of the Justices’ own choice of values,” and therefore that these decisions be limited strictly to the particular beneficiaries of privacy, like users of contraceptives, that they discussed. Justice Blackmun’s dissenting opinion, on the contrary, insisted on treating those cases as decided on a more general principle that future judges should try to identify and respect, and therefore as extending to other groups, including homosexuals, beyond the immediate beneficiaries of the decisions.⁷

I have no doubt which is the better answer to the interpretative question I posed. Though several senators explained their votes, outside the hearings, by objecting to Bork’s rigidity and his apparent lack of humanity, the argument in the committee room was devoted almost exclusively to the first part of his historicism, to the question of whether his original intention view of the Constitution as law is coherent and persuasive. I cannot recall any challenge to the second part of his historicism—to his claim, which seems absolutely right, that a justice’s overriding responsibility in constitutional cases is to what he or she thinks that the Constitution, as it stands, actually requires. A jurisprudence of principle is, moreover, in every way more attractive than one of discretion. And it is safer:if we face another threat to our liberty comparable to the McCarthyite threat of the Fifties, we will not be well served by a Court grown used to the idea of an elastic Constitution, the idea that principle should be tempered with what then passes for common sense.

So the best interpretation of Bork’s defeat is not that he is too rigidly devoted to the rule of law but that his jurisprudence—his vision of what the rule of law requires—is superficial and inadequate. My main concern, however, is not to defend that answer to the interpretative question but to urge the importance of the question itself. Constitutional lawyers and historians may debate the meaning of the Senate’s decision for some time to come. But our Constitution will be affected by any answer judges and scholars settle on even temporarily. A critical part of the Bork story has only now begun.

3.

Will future Supreme Court appointments provoke the political wars Bork’s nomination did? Will political action groups take sides and do battle as a matter of course? Will public opinion polls become an ordinary feature of confirmation proceedings? Everyone hopes not, but many commentators have been pessimistic. The Supreme Court’s decisions are so important to so many people, they say, that some political group or other will be moved by the Bork precedent to try to defeat any appointment a president makes.

That view seems premature. Reagan chose to make the Bork nomination political. During the 1986 midterm elections he asked the voters to elect Republican senators so that they could vote for his nominees (he expressed shock when the Democrats elected against that advice opposed his nominee). He chose Bork in spite of Senator Byrd’s prescient opinion that Bork alone, of all the candidates on the short list, would be regarded as a political appointment, and he offered Bork to the nation not simply as a distinguished jurist but as a lawyer representing his own radical view of the law. When Bork was defeated Reagan called the opposition a lynch mob and promised a new nominee—it turned out to be Ginsburg—who would upset the liberals just as much. If future presidents behave like that, their nominees will almost certainly face political opposition, particularly when the Senate is controlled by an opposition party. But that lesson may itself lead future presidents toward less confrontational appointments; and the shared sense of the danger that Supreme Court appointments have already become too political may encourage consensus rather than controversy.

It may already have done so. When Reagan nominated Kennedy he apologized for his political presentations of Bork and Ginsburg: he said he had become wiser in the last few months. And the far right’s hostility to Kennedy had been widely reported when Ginsburg was chosen before him, so that Kennedy appeared more moderate for that reason. In further statements Reagan stressed not Kennedy’s ideological purity but his so far favorable reception by liberals, and that favorable reception itself reflects a liberal concern not to be seen this time as the group first bringing politics into the story. So a wary, unspoken bargain seems to have been struck, allowing all groups to walk back from the brink together. Have the liberals been tricked, in this way, into accepting someone they should oppose? Is Kennedy only a Bork dressed up in the clothes of moderation?

A judge’s political and moral convictions must inevitably affect his judicial decisions, and Kennedy’s many opinions as a circuit court judge suggest that his convictions are on the whole decidedly conservative. He has refused invitations to set aside death sentences when other judges might have done so,⁸ accepted fresh exceptions to the exclusionary rule, which forbids using evidence in a criminal trial that the police obtained illegally,⁹ and rejected arguments, which more liberal judges might have approved, urging him to strike down legal or institutional arrangements as discriminatory against blacks or women.¹⁰ But he did not appeal to any historicist, “original intention” theory of the Constitution, or any other theory suggesting a general hostility to the idea of individual constitutional rights against government power, to justify these decisions. On the contrary he appears to accept the idea central to what I called a jurisprudence of principle: that courts must try to discover principles justifying not only the text of the Constitution but the traditions and practices, including past Supreme Court decisions, that are also part of our constitutional record.

In a speech to a judicial conference last August Kennedy insisted that Court decisions must be based on “some demonstrated historical link between the rule being advanced in court and the announced declarations and language of the framers.” This falls far short of supposing that abstract constitutional language must be applied only in ways the framers anticipated. And he added that the courts must also respect what he called an “unwritten constitution” which “consists of our ethical culture, our shared beliefs, our common vision,” and which, he added significantly, acts as “an additional brake, an additional restraint” on the power of the government.

The force of this concern for principles that constrain government is evident in at least some of Kennedy’s judicial opinions. Bork’s decision in Dronenberg, that the Navy’s policy of dismissing homosexuals did not violate the Constitution, figured prominently in his hearings because in that opinion he refused even to try to find any general principle behind the Supreme Court’s decision in Griswold and other privacy cases. He argued that since these decisions were wrong because unfaithful to original intention he had no duty to treat them as standing for any general principle at all. Kennedy reached the same conclusion about the Navy’s policy, in a separate case, but his opinion was very different.¹¹ He assumed that he had the duty that Bork rejected; and he even assumed, for the sake of the argument, that the principle to be found in the privacy decisions extended to homosexuals. He said that the military’s special needs for disciplined and unquestioned authority were strong enough to override that principle in the present case; but he was careful to point out that these needs were exceptional and that his argument justified no larger conclusion denying homosexuals rights in other contexts.

Kennedy’s attraction to principle was equally evident in another opinion. He dissented from a decision of his entire court, en banc, which accepted as evidence heroin that the police had discovered by offering the five-year-old son of a defendant five dollars to tell them where it was hidden.¹² He did not rely, as had the trial judge, on any simple, discretion-like judgment that the police had behaved in a repulsive way. He found a principle protecting the relationship between mother and child from such assaults latent in a string of constitutional cases, including one well-known Supreme Court decision that Bork had denounced as plainly wrong.¹³ And Kennedy’s best-known opinion, in which he declared unconstitutional a procedure authorizing one house of Congress to set aside a deportation order on hardship grounds, contains an extended discussion of the principle of separation of powers which, although it draws extensively on the views of Jefferson and his contemporaries, aims to construct an interpretation of that principle faithful to our entire constitutional record.¹⁴

The hearings may reveal strains of narrow historicism in Kennedy’s jurisprudence that I did not find in his opinions. And he is almost certain to reach conclusions that a more liberal judge would reject. But the danger Bork posed to the ideal of constitutional integrity was not simply the threat of conservative results. Bork is a radical because he opposes that ideal itself; Kennedy, on the record so far, seems to accept it. Bork always has available a mechanical, unreflective way to choke off arguments of principle; he claims that these arguments are preempted by purportedly historical claims about what the framers had in mind.

Kennedy seems likely to accept more intellectual discipline, to insist on more lawyerlike, principle support of his own conservative inclinations; and conservative principles, fairly applied, protect minorities better than does the raw majoritarianism of strict historicism. So Kennedy’s appointment, if he is confirmed, would not show the fight against Bork to have been pointless. His grudging nomination might prove, on the contrary, to be an early confirmation that, in rejecting Bork, the Senate succeeded in putting an alien and unattractive theory of our Constitution to rest.

—November 19, 1987