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A Different View of the Bork Affair and the Right to Privacy
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16478 |
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Section : |
MODERN THOUGHT
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| Issue
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5 / 1989 |
2,252 Words |
| Author
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Morton A. Kaplan
Editor and Publisher |
Florence Ruderman has made some very telling arguments in contending that Judge Bork was a poor choice for a Supreme Court nomination. There is little doubt that Robert Bork had subscribed to a series of doctrinaire positions that found expression in his scholarly writings and that these led to some absurd conclusions. I agree that these should not have been ignored when considering his candidacy for the court. I also agree that his nomination was handled poorly, and I fault Ed Meese here as well as Judge Bork.
Like other presumptions, however, these also must be tested against experience. Judge Bork's conduct as a judge and as solicitor general was more relevant than his scholarly articles because it provided a much better basis for determining what he would do as a justice on the Court. Although I have no direct knowledge of his conduct, I have discussed it with a former attorney general, who was also a law school dean, and with a second dean, both of whom were familiar with Bork's record in the two positions. Both considered Bork eminently qualified and found in his conduct none of the doctrinaire baggage that emerged in his earlier scholarly articles. Neither dean is a doctrinaire conservative of the type Ruderman finds objectionable.
At the end, had I been a member of the Senate, I might have voted against Judge Bork, but on different grounds. I believe that confidence in the Court is more important than justice to a nominee, even if he is, as was Judge Bork, a superior candidate. By the end of the hearings Bork had been damaged by disinformation, particularly in the eyes of blacks, to such an extent that his presence on the Court would have been a mistake, no matter how brilliant his opinions would have been. Perhaps it is not entirely irrelevant that some of his doctrinaire positions, particularly in the Griswold and lunch room cases, were used against him effectively and that he so poorly handled these charges. On the other hand, some of the attacks on him ill-served our constitutional process.
However, it is the substance of Ruderman's constitutional position to which I take objection. Privacy, I agree, is an important value; but it is not a generalized right. The Court's use of a generalized right to privacy as a foundation for a decision in the Griswold and Roe v. Wade cases, apart from being philosophically unsophisticated, was truly radical and inherently dangerous to our constitutional order.
The Bill of Rights was added to the Constitution to make clear the constitutional importance of certain
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