Sunday, December 23, 2012

Reflections on Robert Bork

So, Robert Bork is dead.  Admirers recall him in characteristically admiring terms, while opponents set aside the normal reluctance to speak ill of the dead.  I can make a few comments.

The Bork nomination fight was not as unprecedented as people say.   It is commonly said that the Senate was doing something new and unprecedented when it rejected Bork as a nominee for Supreme Court, but that is simply not true.  Richard Nixon had two nominees rejected for the Senate before successfully appointing Harry Blackmun, and encountered considerable resistance to William Rehnquist.

The Bork nomination sent Supreme Court nominations downhill -- but that was all,  Conservatives these days often argue that our dangerous polarization today began with the Democrats rejecting Bork for the Supreme Court.  If only they had confirmed Bork, Republicans seem to imply, all the polarization that happened since -- the two government shutdowns under Clinton, the Clinton impeachment, Bush v. Gore, the abuses of the filibuster, the debt ceiling crisis, and Republicans' current willingness to crash the whole system in order to destroy Obama -- could have been avoided.  This story sound way too much like the abusive husband claiming that he only beats his wife because she provokes him.  I will concede conservatives this -- the rejection of Bork has totally ruined the Supreme Court nomination process.  Prospective nominees since Bork have refused to give straight or honest answers to the Senate for fear of meeting his fate.  But I do not believe that all the polarization that has happened since can be laid that the door of the Bork nomination.  To call the hysterical behavior of Republicans for the past two decades payback for Bork is an extreme case of overkill.

I could live with the Bork of The Tempting of America on the Supreme Court.  After being turned down for the Supreme Court, Robert Bork wrote three books, The Tempting of America, Sloughing Toward Gomorrah, and Coercing Virtue.  Of the three, I have not read Coercing Virtue.  The Tempting of America expresses a controversial but defensible viewpoint -- that the Constitution should be interpreted according to its text, as understood at the time of adoption, and that the Supreme Court should not read new rights into it.  This is a tough enough standard that even Bork is not always able to live up to it.  Most famously, he endorses Brown vs. The Board of Education in its finding that school segregation was contrary to the Fourteenth Amendment, even though the practice was widely accepted when the Fourteenth Amendment was passed.  His reasoning is, in effect, that the phrase "equal protection of law" was written to ensure racial equality and must be interpreted with that end in mind -- but that our concept of racial equality does not have to remain frozen in 1868.  But he is so uncomfortable with this conclusion that it takes him three paragraphs to say so.  His discomfort is understandable.  If our concept of racial equality does not have to remain frozen in time, who knows what else might not have to remain frozen, either.

Bork also can't quite bring himself to endorse a ban on any school, public or private, teaching foreign languages to children before the eighth grade (Meyer v. Nebraska), a ban on Catholic schools (Pierce v. Society of Sisters), or state legislatures so grossly malaportioned that a majority is systematically excluded from electing a representative majority (Baker v. Carr).  He appears, however, to be willing to tolerate punishing some crimes with coerced sterilization (Skinner v. Oklahoma), to say nothing of a ban on contraceptives (Griswold v. Connecticut).  I am inclined to support Bork's essential thesis -- that no matter how bad the law, the Supreme Court may not strike it down unless it violates a specific clause of the Constitution -- though not his application in many cases.  And for an originalist who says we must follow the wishes of the Founding Fathers, he discusses them with a refreshing lack of romanticism or idealization.*  Only when he starts discussing the people who opposed his nomination does Bork's tone begin to veer off into authoritarianism or paranoia.  Bork disagrees with his opponents, such as the ACLU, public interest advocacy groups and so forth, obviously.  Such disagreement is understandable.  But never does Bork seem to acknowledge that such people might hold their views in good faith, or that they have the right to advocate for them, after all.  Ultimately, he seems to regard the mere existence of liberal advocacy groups and sinister and basically unacceptable.**

But the Bork of Slouching Toward Gomorrah scares the hell out of me.  But if The Tempting of America is controversial but defensible, Slouching Toward Gomorrah veers off into crazyland.  Bork does not just lament that society is heading downhill on greased runners, he seems to think that the entire Enlightenment was a huge mistake.  Not only does he condemn equality (with the grudging exception of equality before the law) as an evil that only a sinister elite favors, but even liberty seems to him like a dubious value.  The whole book reads like a longing to return to the Middle Ages, when intellectuals were securely in the pockets of the ruling elite and were paid to defend the status quo of power, not criticize it, and when any too-stubborn dissident who could not be bribed faced the possibility of burning at the stake.

It was from Bork that I learned that authoritarianism is not the same as statism.  Bork appears to concede democratic government as an inevitable evil, but want to limit its scope and be as authoritarian as possible in everything else -- families, churches, schools, workplaces, and so forth.  Incredibly, for a book written within a decade of the end of the Cold War, Bork says almost nothing about Communism -- and what little he does say borders on favorable.  He applauds Communists for banning rock music, saying that they understood that it was a threat to all authority.  If today's pop culture was what brought down the Berlin Wall, he would just as soon see it go back up again.  While I believe that Jonathan Haidt is right to criticize liberals for dismissing conservative concerns for group loyalty, authority, tradition, and sanctity as mere authoritarianism, in Bork's case, the accusation looks accurate.  Bork sets a high value on authority and tradition and is dismissive of freedom.  He also strongly seems to suggest that he regards respect for tradition and concepts of the sacred as valuable in and of themselves, as means of social control, regardless of their intrinsic value.  In Tempting, Bork acknowledges that some things are part of "the traditions of our people" without being very worthy.  In Gomorrah, he seems to believe that all institutions and traditions must be upheld, simply because they are established and traditional.

Bork sees as signs of our social decline Catholics who question the will of the Pope instead of automatically obeying, Protestants who question the inerrancy of the Bible for no better reason than that it is contradicted by physical evidence, oh yes, and the decline (in our universities) of "the critical, scientific spirit."  As evidence that political correctness is ruining the culture of our universities, Bork give the example of a non-art class being taught in an art classroom with a copy of Goya's Maja Desnuda on the wall.  When some male students in the class snickered at the nude, the professor asked the administration to take it down.  (When asked about the incident, she said that the painting did not offend her, she only wanted it removed because it was creating a disturbance).  I leave to the imagination what the response would have been, and whether Bork would have approved if the Maja Desnuda had appeared in any high school art room.

In fact, at the time Bork wrote, many trends were underway that he would presumably  have seen as favorable.  Income distribution was becoming less equal, taxes were becoming less progressive, and rates of incarceration were rising.  But none of these counted for Bork because some people criticized them, and only if these trends had been greeted with universal acclaim would they have been signs of moral health.  Also revealing is what Bork did not see as cultural decay.  Drug gangs shooting it out in our inner cities was a sign of cultural decay.  Firearms manufacturers openly marketing a produced under the name of Streetsweeper was not, and neither was the presence of armed militias running training camps dedicated to the overthrow of the federal government.  Black people believing mad conspiracy theories about the CIA trafficking drugs and inventing AIDS was a sign of social decay.  White people believing mad conspiracy theories about black helicopters, UN takeovers, or Elvis being alive was not.  Movies promoting senseless sex and violence was a sign of social decay.  Talk radio spewing hate and vitriol, including G. Gordon Liddy giving advice on how to kill federal agents, was not.  In fact, the bare fact that talk radio offended liberals was proof enough to Bork that it must be good.  In his denunciations of political correctness, Bork points out how easy it was to dismiss any evidence contrary to the theory as counter revolutionary props of the status quo.  Little did he suspect that in the coming years his conservatives would adopt the technique on a much larger and more powerful scale, dismissing any embarrassing contrary evidence as mere "liberal bias."

Of course, one can fairly ask whether this is the result of bitterness as a result of losing the nomination.  Perhaps if Bork had been confirmed to the Supreme Court, he would have retained the relative sanity of his earlier work.  However, the intemperate paranoia of Bork's later work is more than ample to convince me that I am really glad he was not confirmed for the Supreme Court.
*In particular, Bork, although a supporter of states' rights, is extremely critical of Jefferson for taking states' rights to extremes that he considers threatening to the survival of the union.  He admires John Marshall, but is critical of many of his opinions.
**It should also be noted that Bork acknowledges that the left has largely abandoned its interest in economic issues and ceded that territory to the right.  He fails to acknowledge the obvious however -- that this represents a huge victory for his side.