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ick briefing book that painted Bork as a "powerful ally of rst Amendment values" and other civil liberties and ghts, whose views were in the "mainstream." Statistics ere compiled to show that he had dissented in only 6 pernt of the cases that came before him. No mention was ade of the fact that there is dissent in the Courts of Apals decisions less than 4 percent of the time.

Bork himself has given interviews to a series of newsipers in which, while disclaiming any intention to discuss issues," he made sure to get across the point that he was a moderate centrist." His statements in an interview with SA Today were typical:

USA TODAY: Haven't you said you don't think of yourself as a conservative?

BORK: Not as a matter of legal point of view. The position! have taken in public-that you can find in my writing-s that the judge's task is to take the intentions of the legis latures and apply to the circumstances. It's a view that has been taken by liberals and a view that's been taken by conservatives-and it's a view that's been denied by both.

...

USA TODAY: Some people say that your being on the Supreme Court could flip a lot of precedents. And you'd say, don't necessarily bet on it.

BORK: Right.

Bork's writings have revealed a rigid reactionary, and art of the strategy to make him look like a moderate entails istinguishing between what he has said as a law professor no what he would do as a Justice. Thus, he told USA TO ay, "I think it's possible as an academic to toss out ideas ith some freedom. But when you're a judge, what you're oing is important to people. You don't feel the same kind f intellectual freedom that you might as an academic." Bruce Fein of the Heritage Foundation, a former ssociate deputy U.S. Attorney in the Reagan Administraon and a spokesman for the right, was more candid. In n interview broadcast by the Voice of America, Fein isagreed sharply with Cutler:

The Bork nomination would mean, by and large, the entire docket of the Court would turn a conservative hue, rather than just half, as it's been over the last decade. By and large, Presidents get what they want. I think Judge Bork would vole the way President Reagan would anticipate.

Herman Schwartz, a contributing editor of The Nation, is a professor of law at American University and editor of The Burger Years: Rights and Wrongs in the Supreme Court 1969-86 (Elisabeth Sifton Books/Viking).

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And Cutler's own credibility in this matter is somewhat suspect. As evidence of Bork's liberalism, he cited and quoted from Bork's opinion in Ollman v. Evans and Novak, in which Bork came out for expanding press freedom from libel suits when criticizing political figures. Last year, however, Cutler also testified that Antonin Scalia was a centrist. As evidence of Scalia's liberalism, he cited the same Ollman decision. The catch is that Scalia and Bork were on opposite sides in the Ollman case and had sharply disagreed. Presidents have often tried to shape the Court in their image and, as Fein says, "usually successfully." Franklin D. Roosevelt transformed the Court with his appointments and Richard Nixon achieved what he intended. But both those Presidents' goals were limited. Roosevelt only wanted to halt the Court's interference with governmental efforts to direct the economy. Nixon's main goal was to overturn the Warren Court's criminal justice rulings.

Reagan's agenda is much broader than either Roosevelt's or Nixon's. He is trying virtually to end the Supreme Court's role in advancing individual rights. The Administration has not only attacked the Court's rulings on affirmative action, separation of church and state, abortion, equal protection and criminal justice; it has also challenged the legitimacy of the Court's entering these areas at all. Attorney General Edwin Meese 3d's verbal assaults on the incorporation doctrine (which requires state and local officials to adhere to the Bill of Rights); his rejection of the Supreme Court's traditional role as the ultimate expositor of the Constitution; and his criticism of decisions that depart from what he considers to be the "original intent" of the Constitution's framers are expressions of that attitude.

Bork's record, on and off the bench, is tailor-made for the Reagan Administration's agenda. Like Meese, he has

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assailed not only the specific rulings but their legitimacy. And his record on the bench shows that despite constant reiteration of his fidelity to "judicial restraint," he is aggressively activist in furthering his views, regardless of judicial precedent and even the clear will of Congress.

Bork's hostility to the Court's decisions on abortion, affirmative action and school prayer is well known, and on page 269 Jamie Kalven considers Bork's views on free speech. Less known are Bork's views on access to the courts, antitrust and discrimination; the White House and Cutler did not mention the first two and omitted much about the third.

A legacy of the Warren Court is the availability of a Federal forum for people injured by government or private misconduct. Since his first days on the bench, Bork has gone out of his way to undo that legacy. A study released by the A.F.L.-C.I.O. found that in seventeen out of seventeen nonunanimous cases raising access issues he used a variety of procedural techniques to deny a litigant his day in court. Lack of standing to sue and governmental immunity have been his favorite grounds. Even when a majority of judges have voted to throw out a case on the substance of the claim, Bork has written a separate opinion challenging the court's authority to hear the case.

JUSTICE BORK?

Abortion, free speech, civil rights, race relations...

In October 1983, and June 1984, Jamie Kalven provided Nation readers with a grounding in the reactionary constitutional philosophy of Judge Robert Bork. Copies of this timely set of articles are now available for $2 each; $1.50 each for orders of 10 or more.

Send check or money order, payable to The Nation, to Box D, The Nation, 72 Fifth Avenue, New York, NY 10011. (New York residents add appropriate sales tax.)

September 19, 19

Thus, Bork has held that the homeless have no right challenge a decision by the Administration not to establish "model shelter" as promised; that Medicare patients ar not challenge an effort of the Department of Health and Human Services to prevent the courts from reviewing denials of claims; that Haitian refugees may not challenge 1 government policy of stopping refugees on the high s and that Congressmen may not challenge the President's of the pocket veto.

Bork's pocket-veto opinion-a dissent-reflects his j dicial activism and his deference to presidential power, most publicized example of which was his firing of Andis bald Cox as Watergate special prosecutor. Congreme have been filing challenges to the pocket veto in the Disn of Columbia for more than ten years, and in an unbroka line of decisions the courts have agreed to hear them. Bori concedes this but, together with Scalia, has made it dies that he is quite ready to overturn those precedents (un titude Scalia displayed in his first year on the Court, vo to overturn or "re-examine" no fewer than four leading cases, one thirty-seven years old).

Bork's activism on this issue is reflected as much in method as in his results. One of the cardinal principles of judicial restraint is that, whenever possible, the case should be decided on nonconstitutional grounds. Bork has none theless relied on the Constitution in almost all his standing to-sue decisions, despite the availability of nonconstitution alternatives, so that if his views prevail, even if Congres wanted to grant some people the right to sue, it could no Bork's antitrust jurisprudence, both on and off bench, is also a good indicator of his ideology and the a with which he pursues it. Bork is particularly noted for a article attacking a seventy-six-year-old Supreme Court deci sion that the Sherman Antitrust Act prohibits a m facturer or wholesaler from telling a customer what charge the next buyer. This practice, which Congress t allowed the states to exempt from the antitrust law if they chose, added millions to retail prices until Congress repealed the exemption in 1975. Bork has not changed his mind on this issue, and once on the Supreme Court, he would almos certainly seek to overturn the 1911. decision.

Bork would also eliminate most restrictions on "ho zontal" mergers between competitors and all limitations "vertical" mergers, those between a firm that supplies commodity and one that uses it. In 1950, in the wake of huge acquisition by U.S. Steel, Congress passed the Cell Kefauver Act, which imposed tight controls on such com binations. Fears of economic concentration and harm t small businesses were widely recognized as Congress' chid concerns, as they have been since the Sherman act w passed in 1890.

But what Congress wants means little to Bork. In a tor tured reading of the legislative history of antitrust laws, Bork concluded that the evidence showing what Congres wanted to accomplish was "inconclusive." But, he said in speech in November 1986, even if it were clear that Congrest indeed had been motivated primarily by the fear of econom ic concentration and concern for small business, that

September 19, 1987

would not matter," because the Constitution does not Slow Congress to tell the courts to enforce such values. No recedents or authorities are given for this novel view, which lies in the face of a series of decisions stretching back to when the Sherman act was adopted. Once again, Bork, the idvocate of judicial restraint, has created a constitutional gument, so that even if Congress explicitly told the courts o be concerned about economic concentration, they and Judge Bork could ignore it.

The District of Columbia circuit gets few significant antitrust cases, but in the one that Bork got his hands on, Rothery Storage and Van Company v. Atlas Van Lines, Inc., he went far beyond what was required in the case, writing his own views into the law. On the Supreme Court, Bork's impact on antitrust matters could be immense. Few other Justices seem very interested in the field, and he would have little trouble finding allies among his fellow conservative Justices for his anti-antitrust crusade.

Bork's views in this area are part of a generally probusiness ideology. A study by Columbia Law School stu dents of rulings by Reagan appointees to the Courts of Appeals in nonunanimous cases found that in eight cases where business and industry groups sued Federal agencies, Bork voted for the business groups seven times, whereas public interest groups that sued the agencies won in only one out of eighteen on which he sat. In one notorious case, Bork stood a forty-year-old utility law doctrine on its head in order to help a power company compel its customers to pay for a canceled $400 million (with interest) nuclear plant. He has upheld a Food and Drug Administration rule extending the time color additives of questionable safety could stay on the market pending tests, and in cases involving air pollution, worker safety and labor-management relations he has ignored his usual deference to administrative agencies to overturn rulings that went against business.

Bork's views on laws barring racial and sexual discriminaCon also show his authoritarian side. In a 1971 law journal, he wrote that "most of substantive fi.e., non-procedural] equal protection is... improper.... The Supreme Court has no principled way of saying which non-racial inequalities are impermissible." Precedents, some set forty years ago, were challenged as "improper," including decisions protecting illegitimate children and welfare recipients; rulings prohibiting judicial enforcement of racially restrictive housing covenants, sterilization of selected groups of felons, and poll taxes, as well as the case mandating the one person, one vote principle. Although he has since tried to back away from those views by calling them "academic,” he has also said that they represented the culmination of seven years' hard thinking and debate with his mentor, the late Yale Law School Professor Alexander Bickel. And this year he reiterated that "I do think the equal protection clause probably should be kept to things like race and ethnicity.”

Bork might not try to put those precise views into effect, but they are based on a profound predisposition toward judicial immobility where the protection of individual rights is concerned, and a methodology he has never repudiated— that the only valid sources of constitutional law are the text,

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history and structure of the Constitution. Those predispositions will inevitably emerge in his decision-making on new issues that come before him.

Moral Majority leader Jerry Falwell has declared that "We are standing at the edge of history. Our efforts have always stalled at the door of the U.S. Supreme Court and [the Bork nomination) may be our last chance to influence this most important body." He's right, and not because Bork is a centrist.

Bork v. The First

JAMIE KALVEN

S

upporters of Supreme Court nominee Robert Bork are making a concerted effort to portray him as an open-minded moderate. Toward that end, they make much of his views on the First Amendment. His work in this area, they say, shows that he is more sensitive to civil liberties and less ideologically rigid than his critics suggest. They acknowledge that he advanced an extremely narrow interpretation of the First Amendment in a 1971 article in the Indiana Law Journal but argue that his more recent pronouncements, seen against that background, testify to his capacity for intellectual growth. The press has, for the most part, accepted those claims uncritically. The Senate Judiciary Committee should not, for this portrait of Bork as a champion of First Amendment values has virtually no basis in fact. On examination it proves to be based on nothing more than a single concurring opinion and an ambiguous, self-serving reply to criticisms published in these pages. In the October 1, 1983, issue of The Nation, I analyzed Bork's 1971 article to show what his general approach to the Constitution would mean for one highly valued tradition. When the American Bar Association Journal ran an item about my article under the memorable title "Here Comes Attila the Hun of the Constitution," Bork responded angrily. His reply, published in the A.B.A. Journal, was at once heated and carefully crafted. In tone it seemed to disavow the 1971 article, implying that I had been somehow unfair to take seriously what he had written thirteen years earlier; in fact it conceded very little. On June 16, 1984, in a second article in The Nation, I posed the questions that his reply had left unanswered. Bork did not respond directly. He did, however, address First Amendment themes in another forum.

While the Nation/A.B.A. Journal exchange was in progress, the United States Court of Appeals for the District of Columbia Circuit, on which Bork sits, heard arguments in Ollman v. Evans and Novak, a libel case. Some months later it ruled that the statements at issue were protected under the First Amendment. Bork took the occasion to file a concurring opinion, in which he expressed concern about the rising incidence of libel suits against the press. He wrote eloquently

Jamie Kalven is the editor of A Worthy Tradition: Freedom of Speech in America, by Harry Kalven Jr., to be published in January by Harper & Row.

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ecessarily rough-and-tumble character of politi se in a free society and offered some thoughts on aw might best be developed. The opinion is lucid al. It is not, as some of his supporters would have , the Magna Carta.

d be ungenerous to dismiss the Ollman opinion as attempt by Bork to counter the image of himself— 4 to 340,000 lawyers by the official publication of nized bar—as a menace to the free speech tradition. .be equally inappropriate, however, to disregard the and surrounding circumstances of the opinion. For ast one of many instances that have stirred suspicions hether Bork's actions are dictated by principle or by ic considerations arising from his campaign for a seat Supreme Court. As they review his career and writings, ators who will vote on Bork's nomination must take of to misread opportunism as evidence of an open mind. r should they be deluded into thinking the Ollman on a significant departure from Bork's earlier phishy. On the contrary, it is wholly consistent with the Amendment theory he advanced in 1971. At the heart at theory is the idea, associated with the landmark libel sion in New York Times v. Sullivan, that the central aning of the First Amendment resides in the protection of public debate essential to democracy. So far so good. the proceeds from that premise to the harshly narrow nclusions that First Amendment protection should be nited to "political speech" and that there should be no onstitutional impediment to the suppression of speech that advocates forcible overthrow of the government or the iolation of any law."

Neither Bork's A.B.A. Journal reply to my article nor his ǝpinion in Ollman discloses to what extent and in what respects he continues to subscribe to that theory. The Senate Judiciary Committee should question him closely about this. There are several lines of inquiry:

In the A.B.A. Journal, Bork stated that he no longer takes til vilm that First Amendment protection is limited to political speech: "I have long since concluded that many other forms of discourse, such as moral and scientific debate, are central to democratic government and deserve protection." The phrasing of this apparent recantation is unnerving. What about literature and art? Do they fall

SUPREME COURT WATCH
REPORT ON JUDGE BORK

The Supreme Court Watch project of The Nation Institute has produced an exhaustive analysis of Robert Bork's positions on several civil rights and civil liberties issues. To order a copy, write Emily Sack, director, The Nation Institute, 72 Fifth Avenue, New York, NY 10011. Please include $4 for shipping.

September 19, 1987

within those "other forms of discourse"? On what basis would he distinguish the nonpolitical speech he would protect from that which he would not?

Bork would deny constitutional protection to speech that advocates the violation of any law. Does that include advocacy of civil disobedience? Under his theory would i have been constitutional for Alabama to jail the Rev. Martin Luther King Jr. for giving a speech urging sit-ins at begregated facilities?

§ Bork's A.B.A. Journal reply was silent on the lour posed by the advocacy of forcible overthrow of the govern ment, although my article had sharply challenged his virus on this question. The issue is central to political freedom. Such advocacy is typically part of a larger political critique. Hence to draw the boundaries of permissible advocacy is also to determine the limits of permissible criticism. Starting with the elaboration of the "clear and present danger” test by Justices Oliver Wendell Holmes and Louis Brandeis in the years following World War I, the Supreme Court has strived to fashion constitutional standards that allow for the fullest possible protection of political criticism while curbing advocacy as it approaches the threshold of criminal action. In 1971 Bork curtly dismissed that line of doctrinal develop. ment. Does he still regard the clear and present danger test as an unwarranted judicial invasion of the legislative do main? Does he still believe that the development of Fin Amendment doctrine should have stopped with Gitlow New York, a case decided in 1925 and long since repudiated in which the Court held that legislatures should be free • suppress any advocacy of force or the violation of law, no matter how deeply embedded in political criticism, no i ter how general and remote from action? (The might present Bork with the speech at issue in Gillow pamphlet about which Justice Holmes, dissenting, tartly observed, "Whatever may be thought of the redundant discourse before us, it had no chance of starting a present comflagration”—and ask him if he would allow it to be sup pressed today.) Does he remain prepared to argue that the purpose he discerns in the First Amendment—protection of the political criticism essential to democracy—is best served when the task of determining the outer limits of acceptable criticism is left to the majority and to the government officials criticized?

Inquiry into Bork's First Amendment views has significance beyond the obvious importance of the freedoms at stake. This is the ground his supporters have chosen in their efforts to soften his image. Once the mirage of Bork as an ardent guardian of the First Amendment is dispelled, the pattern underlying his position on various constitu tional issues emerges with harsh clarity. It is a pattern of unrelenting hostility to the entire enterprise of judicial review for the purpose of protecting individual and minority rights. When Bork and his supporters use the words "judicial restraint" to describe this orientation, they defame an honorable tradition. To reject the Bork nomination is not to reject that tradition. It is to reject a radical program fundamentally at odds with the way most Americans, conservatives as well as liberals, think about law, justice and the Constitution. D