Robert H. Bork – An Intellectual Feast, Part II

THE OPEN MIND
Host: Richard D. Heffner
Guest: Judge Robert H. Bork
Title: “Robert H. Bork – An Intellectual Feast”, Part II
VTR: 11-20-88

Heffner: I’m Richard Heffner, your host on THE OPEN MIND.

And this is the second of our series with former Federal Appeals Court Judge Robert H. Bork.

In January, 1988, two moths after the Senate rejected his nomination by Ronald Reagan to become an Associate Justice of the Supreme Court of the United States – and, whatever one’s politics, who could doubt what an illustrious addition he would have been to the high court – Judge Bork signaled the President that he would leave the bench altogether to be free, as he noted, of the constraints of propriety and seemliness “that keep a sitting judge from engaging in public debate”.

Above all else, Judge Bork wanted to devote the time and energy he believed alone could adequately enough focus American’s attention on what he considers an attempt to alter the nature of our courts and a “traditional view of the judge’s role under the Constitution”. He has done just that. And last time here on THE OPEN MIND we began to deal with some of the great issues Judge Bork sees as so pressing. We’ll continue to do so today. Thank you, Judge Bork for staying with me today. You know Suzanne Garment in “Commentary” in January 1988 wrote a fascinating piece and I think largely and accurately entitled “The War Against Robert H. Bork” referring to the conflict over confirmation. She says at the end about those who attacked you that “they were delivering a message that the left is no more tolerant than it was twenty years ago of ideas to the right of its own and that its deepest hatred is reserved for those public figures who champion those despised ideas with genuine intellectual skill”. I wondered as I read whether that couldn’t be said today just as easily about the right and its attitude toward the left and whether we’re not just in such an incredibly confrontational system that we’re in danger.

Bork: Well, I think you have a very good point there. Our politics is becoming increasingly polarized and increasingly divisive. I think in some ways the two sides are arguing from different moral premises so the possibility of consensus is ruled out but I must say I think there is…that our politics are also asymmetrical, that is I think there is a large…there used to be conservatives and liberals grouped around the center. Now there is a large, unprogramatic, radical group well to the left of the liberals – the liberals as we used to know them.

Heffner: Why do you say “unprogramitic”?

Bork: Because they’re not like the Old Left. They don’t announce that they have a program – the nationalization of the means of production and so forth and so on. They move from topic to topic to topic and they haven’t got an overall program, but they fight on a variety of issues that come up as they arise.

Heffner: What motivates them?

Bork: I don’t know, I don’t know. But they are the children of the Sixties, and now they’re tenured in our universities, now they’re leading the activist groups and they are not like the old liberals at all. But there is no comparable right. I think we’re talking about a left that does not like traditional society, does not like American society, does not like middle class values in the society. There is no comparable group on the right of similar size that attacks traditional society, traditional values, traditional lines of authority.

Heffner: And yet we’ve just come through an election which reference had to be made to the “L” word, as if liberal were a dirty word. Isn’t that something akin to what you’ve described?

Bork: Well, I think, no, I think that’s right. It’s akin to what I’ve described. I think…there is an old style of liberal, but modern liberalism has evolved into something very different. Now there are still old style liberals around but there is a modern liberalism that is intolerant, self-righteous, has values that are very different from the mainstream of American life. And they are extremely active in politics.

Heffner: And yet I’ve heard Barry Goldwater describe new conservatives in somewhat the same way, as if, by gosh, the old debate between right and left, between liberals and conservatives that that had gone by the boards as far as both sides were concerned…when what we had were the extremists. Interestingly, you say “non-programmed” or “programmatic” people of the left…you say, and he seems to be saying of the right, too.

Bork: I think there are obviously conservatives who are extreme, visceral, but I don’t think they have, by any means, the numbers or the network or the organizations that the extreme left has now.

Heffner: And yet in this past election the business about crime and the business about being soft on crime and criminals…didn’t that go much further than rationality warranted?

Bork: I don’t think so.

Heffner: You don’t?

Bork: No. No, I think George Bush used a variety of things like the Pledge of Allegiance, like the ACLU connection that Governor Dukakis had, as symbols. I mean they’re important in and of themselves, but they were also symbols of a whole set of attitudes. And I think the American people recognized what set of attitudes they were symbols of.

Heffner: How would you describe them?

Bork: The lefts? Well, it’s a rather…I hate to be…I think they’re somewhat nihilistic. I think they are animated by, a lot of them are animated, by intense dislike of this society. You see that in foreign policy in their attitudes towards people who are against the Soviet Union or, you know it’s the anti anti-communists syndrome they display. You see it in domestic affairs when these groups take the position that the First Amendment guarantees the right to distribute pornography, including child pornography. I don‘t purport to understand where the motivation came from. I remember Midge Decter said of people like that once, it was like foot fetishism. She says she knows it exists but she can’t explain it.

Heffner: Well, you know, I was interested then when you wrote a piece, not so long ago, on the Reagan legacy. You and a number of other people did, talking about attitudes of this group to the left. And I wondered whether you wouldn’t be willing to say it’s not right, it’s not left, it’s just, to use the word you used before, “nihilist”. Doesn’t really belong to the left, doesn’t really belong to the right, it just doesn’t belong anywhere. It is “anti”.

Bork: Well, it is “anti” but the positions they take are positions more likely to be associated in the past with the left.

Heffner: I guess I should say I resent that…

Bork: (Laughter)

Heffner: …because I don’t think that “L” as meaning left or liberal should encompass quite as many of the nihilistic notions that you are attacking now. But let me go back tot his question of the Reagan legacy. You write it and you call it “Only the Start”. It’s interesting…

Bork: I didn’t…by the way, no author is responsible for the title that the magazine puts on it.

Heffner: OK, how about the words inside?

Bork: Yes, I’m responsible for those.

Heffner: OK, talking about the good things that you believe that the Reagan administrations have done…You then go on to say you find some problem in National Security and foreign affairs, “A bright beginning has darkened as the Administration abandons some of what seemed its major premises”. And you’re talking about the acceptance, on the part of the Reagan Administration at its end, of the notion that the Soviets are perhaps changing their spots. You say then, or write then, “This can lead, has already let to a kind of arms control that is a net loss for Western security”. And I wonder if you’d elaborate on that?

Bork: Well, I think the…you know we went through this period when President Nixon announced that we had détente and we relaxed and of course the Russians and the Soviets did not relax. And I think right now by his arms control negotiation and by his explicit statements about Gorbachev being the first Russian leader who didn’t seek world domination. And even, amazingly enough, announcing that Gorbachev was more like Lenin and that Lenin was a good guy compared to Stalin, I mean it’s a very confused business. But one of the things that comes across is that the Soviet threat to us is subsiding. I don’t think that’s true in the slightest and I don’t think this is the time to be telling the American people that we can all relax now.

Heffner: Now I need to ask you as I asked you in the last program, as I’m sure I will again today on this one, how do you explain Ronald Reagan, a man that talked about “the evil empire” on and on in those first years, if what you are saying is correct and we are endangered by this position? How do you explain it?

Bork: I can’t. I don’t know what…you’re asking me to explain the inner workings of a man’s mind whom I know only slightly and I can’t explain it. But it’s a…maybe it’s a desire to believe that the world has become safer. We all have that desire to believe that. Maybe he succumbed to it.

Heffner: Do you think that the President-elect, George Bush, fits into that same…

Bork: I don’t think so because you may recall that he…one of the areas in which he expressed some disagreement with Ronald Reagan was that he did not think that the Soviets had changed that much and, indeed, there’s no evidence that they’ve changed. They’re still supporting colonial empires across the seas with lots of money. They’re still building aggressive weapons but the stuff they’re building is not defensive. They have this bridging equipment, tanks and so forth they keep augmenting in Europe. There’s no evidence that they’ve changed any of their ambitions whatsoever.

Heffner: Do you think that if George Bush had made that point of view known, if indeed, it is his point of view, he would have won as handsomely as he did?

Bork: Maybe better, maybe better because I think the American people, a large part of the American people, are concerned about national defense and we are in fact vulnerable until, unless we get SDI, the defensive thing against missiles. We are in fact vulnerable, and I think the American people fully appreciate that and I think if George Bush had told them that, and made a bigger point of defense, he did make a point of it, made a bigger point of it, made a bigger point I think he might have won by even more.

Heffner: That’s interesting because there seems to be so many people who feel, quite to the contrary, that he was, if it’s not a pejorative phrase, playing to what would seem to be an increasing desire of the American people to believe, just as you say – unfortunately President Reagan seems to be believing – that the bear has changed its spots.

Bork: If George Bush did that, I don’t recall it. He explicitly said at one point in the campaign that he continued to be more suspicious of the Soviets than Reagan did.

Heffner: But that one of his first tasks would be to move forward in the effort to achieve world peace and obviously peace with the Soviets and obviously more and more negotiations which you see as, if not a stumbling block, as part of the down side of these last Reagan months.

Bork: I don’t mind people negotiating with the Soviets but they ought to make sure they get a bargain that is fair to us as well as to the Soviets. It’s not entirely clear that some of those treaties that were on the way, that didn’t get completed, would have been fair. And a lot of people who specialize in this area are quite nervous about the things we are giving away.

Heffner: OK, in a sense just because I had been so taken by this piece on the Reagan Legacy…it stuck out and I wanted to ask you about that. I don’t want to sit with that. There were so many things in the readings that I had done that were of very, very real interest and yet, I wanted to come back and ask you about things that don’t necessarily surface in the articles, in the pieces, having to do with the law generally, having to do with things that we’ve discussed, not you and I, but other people in the legal profession here at this table – crime and punishment, the role of lawyers in this country, any number of things; and this last bit about the role that your profession plays in American society, what your own evaluation of it is. What the down sides are and the up sides because in the other program we did together you indicated that you thought that law schools were teaching now, or were dominated by those who were teaching an approach to the judiciary which you don’t share.

Bork: That’s right.

Heffner: What else are they doing that they should or should not be doing?

Bork: Well, I think the other thing that is somewhat worrisome, but on a professional level, is that there are an awful lot of courses in law school that really belong in philosophy departments – the nature of a just society – or political science departments. And some law schools are not adequately grounding their students in professional skills which is what, after all, their clients expect them to have when they rely upon them. But I think the larger problem is really the politicalization, not only of the law schools, but of many departments of our major universities.

Heffner: What do you mean “the politicalization”?

Bork: I mean that political attitudes and political desires are creeping into what should be intellectual studies and are diverting the outcomes of those arguments.

Heffner: Were they ever as squeaky clean, purely intellectual…

Bork: No. No, of course they were never squeaky clean but they were less politicized.

Heffner: Or politicized on the other side?

Bork: Oh no, I don’t recall…not in my lifetime. I don’t recall any conservative…you know it’s funny because the University of Chicago at the time, was also referred to as a conservative university. In fact, I think the studies they did most of the faculty, by a narrow margin, were Democrats rather than Republicans and they tended to vote more or less the way the American public did that way, perhaps a little bit to the left. But from an academic perspective, a faculty that looks like the American public in its attitude is regarded as a very conservative, right-wing faculty.

Heffner: But, of course, you’re so darn young you can say that and smile. I remember…

Bork: (Laughter) I smile when you called me “so darn young”, but go ahead…

Heffner: Well, let’s say by comparison because it seems to me that when I began my academic work I functioned largely in terms of a still rather politically conservative academic setting. Now, you’re saying you really don’t believe that there was a time when the other politics dominated academic circles.

Bork: I think there was a time, I say I don’t recall it in my lifetime since I first went to college. But in addition to that, it’s not a question of whether the person is conservative or liberal who is teaching the subject, the question is to what extent does the person think his politics is relevant to his intellectual work?

Heffner: And you find that more to be the case today?

Bork: I think so.

Heffner: Particularly in law school?

Bork: I see it a great deal in law school, but one hears from historians and sociologists, and political scientists and so forth that it is taking place in those departments too – the English department with Deconstructionism and so forth. There seems to be politics in all of the studies that have to do…that are not scientific of medical or something of that sort.

Heffner: Now Midge Decter and I have talked about that at this table. What about the law schools? What do you do about it? Because for each one of the problems that have been raised, my question has to be: What do we do?

Bork: I don’t know what one can do except to argue, to write, to speak, to argue, make people aware of what they’re doing, and what others are doing. It’s a war of ideas. When you say, “What do you do?”, there is nothing you can do except hope to win the argument.

Heffner: You say it’s a “war of ideas”. You mean right against left or left against something that is philosophically blank or neutral?

Bork: Well, in law there is, that’s right, there are three sides. You have left activists who want judges to be political to the left. You have some conservative activists, fewer and then there is a position that law should, in fact, be neutral or at least its content, its political content, its moral content should be given by someone other than the judge. It should be given by the people who voted for the Constitution, should be given by the people who voted for the Statues. And the political coloration comes from there and not from the judge. But now we’re getting in the law schools teaching that the political coloration may properly come from the judge and we’ve had a lot of it.

Heffner: Now, of course, back at the time of Watergate or shortly after Watergate, I remember there appeared an Op-Ed article in The New York Times which said that so many of the people involved in Watergate were lawyers. That it was a star upon their profession, your profession, and that the person who wrote it was in law school at the time and saw law professors leading their students down what this writer called a “slippery slope”, that the teaching of law itself was so amoral…

Bork: That was Bob Smith who wrote the article…

Heffner: How do you feel about that?

Bork: …and I was the professor he was talking about.

Heffner: I didn’t know that.

Bork: Yes, I know you didn’t but the reason was, I was in a class one day and everybody was handing down absolutes. And I said, “There are no absolutes in this business. Give me an absolute and I will prove it’s not an absolute”. And he said, “We never torture prisoners”. And I said, “Fine, there’s a nuclear bomb in Grand Central Station. It’s going to go off in three hours and you’ve got the guy who planted it and he won’t tell you where it is. Six million people are going to die unless you do something to this person”. Well, he didn’t like that example because he felt an inclination to torture that guy to find out where the bomb was. So instead of answering the argument directly, he wrote this article about “Professors shouldn’t raise questions like that because it’s a slippery slope”.

Heffner: What do you think…what justice is there in that characterization, not of what you said, but of the law, the teaching of the law and that slippery slope?

Bork: You know life is lived on a slippery slope. We all have to face the slippery slope in our lives. Unless you’re willing to take one extreme of the spectrum or the other, you’re constantly making judgments of degree, of prudence and so forth. Naturally you’re on a slippery slope.

Heffner: Yes but the…we know what that means generally. It means generally in this discussion that the law teaches, or that teachers teach that winning is everything, the only thing, etc.

Bork: No, I don’t think all law teachers teach that and the discussion I had with my class was not designed to get them to torture anybody. It was designed to make them think because it is very easy to announce wonderful principles but then you have to put a hypothetical example to somebody and see whether he really means a principle that broad or not. And that’s what law teachers should do, make people think.

Heffner: You said a moment ago that one of the problems with law school now is that things that should be taught in philosophy courses, if I remember correctly or political science courses are taught in law school. And you’re assuming, then that they shouldn’t be taught in law school.

Bork: Well, it seems a little odd to have the course about…

Heffner: About ethics?

Bork: No, not about ethics. There are a lot of courses about the nature of a just society. Now, I’m entitled to complain about that because I taught one like that and I finally gave it up on the grounds that I was not arriving at a solution and I was wasting my energy and theirs. But I think that kind of inquiry is very good. It’s just that you have students for a relatively brief period of time. Presumably they’ve been to good colleges and have had all kinds of courses like that – on the nature of a just society – presumably they can read on their own and I think there are enough complexities and profound issues in the law itself that you would do well to focus on those. For one thing, law professors, when they get into political philosophy, are not particularly good at it. It’s not what they’ve been doing all their lives. It’s not what they’ve been trained for and you’re likely to get a second rate – if things go well – version of political philosophy in a law school classroom.

Heffner: Second rate, rather than fifth rate…You said “If things go well”…

Bork: (Laughter) Yes. So that’s why I think it’d be well if people who are trained as lawyers, and I say there are profound questions in the law, it’s not a dry technical matter, but if they’re trained as lawyers it’d be well if they taught law. And if they think the students really need political philosophy they ought to bring in some real political philosophers.

Heffner: And ethics?

Bork: No, legal ethics is important because that has to do with how you have to function day to day as a practitioner, and the kinds of problems you should look out for and not get yourself into, recognizing ethical problems when they arise in your practice.

Heffner: Now, given what you’re concerned about in teaching in law schools, is this largely an ethical question, the way students are being taught in…?

Bork: Well, I suppose you can turn anything into an ethical question. I suppose…I wouldn’t say it’s largely an ethical question. I think it’s a question, in part, of misguided ambition on the part of law professors.

Heffner: Why do you say ambition?

Bork: Because they really want to be philosophers.

Heffner: Not Judges? Philosophers?

Bork: Well, they’d like to be philosopher-judges if possible.

Heffner: Rather than philosopher-kings. Judge Bork, you’ve been going around the country a great deal now. Your objective, as you said when you resigned from the bench, was to press, in a fashion that would not be seemly on the bench, the points of view that you’ve been expressing. How successful have you been?

Bork: Well, I think fairly much because I have spoken to a lot of groups that are receptive to what I have to say but haven’t really thought about the problem much before. And they tell me regularly that that has brought the subject to the forefront of their minds. I think that’s success. I don’t know that I’ve talked to many groups who were really hostile to me and converted anybody but I think there has been some success. But I’m really relying m ore upon a book I’m writing to reach a larger audience. Speaking is a wonderful way to meet people and talk to them and make them aware of ideas but you can reach a much larger number with a book.

Heffner: Focused on the question of the proper role of the judiciary?

Bork: Yes.

Heffner: And beyond that because you express ideas on many other things. You express ideas on the Reagan legacy.

Bork: Oh sure, but I’m not going to include it in a book about the war over control of the Constitution…I will not get into nuclear missiles in that one or into Soviet threats in that one. This book will be confined to the area where law and politics meet and where politics tries to get control of law.

Heffner: What do you expect will happen in the next few years in the Bush Administration in terms of these ideas that you feel so negatively about?

Bork: Well, I don’t think President Bush will be nominating people who are likely to think they are law givers and philosopher-judges. I think he will try to appoint people who are controlled by the meaning of the Constitution as historically understood and by the meaning of the Statutes as those legislators understood them. But he’s going to have to get those nominees through a Democratic Senate which is…has tasted blood, has a very different view (some of them do) of the role of judges than the president will. So, I think there may be some interesting battles. I think you also may see people nominated who haven’t written much because otherwise it could cause trouble for them.

Heffner: No footprints?

Bork: No footprints.

Heffner: Do you regret that you had written as much as you had?

Bork: No, no. I went into the law because I thought it would be a life-long intellectual exercise that would keep me interested as long as I was this side of civility and maybe beyond. But that’s what I went into the law for…as an intellectual endeavor. That’s what I did and I don’t regret saying it.

Heffner: And I don’t regret one bit that you were willing to join us here for two programs, Judge Robert Bork. I really want to express to you my appreciation for the enlightenment that you’ve given us. And we’ll see what happens next. We’ll see if you win the battle.

Bork: We will see.

Heffner: Thanks again, Judge Bork.

Bork: Thank you.

Heffner: Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next time. And if you care to share your thoughts about today’s program, today’s guest, today’s theme, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as an old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Richard Lounsbery Foundation; Mr. Lawrence A. Wein; and The New York Times Company Foundation.