The Tempting of America: The Political Seduction of the Law
by Robert H. Bork
Free Press, 432 pp., $22.50
Battle for Justice: How the Bork Nomination Shook America
by Ethan Bronner
Norton, 399 pp., $22.50
The People Rising: The Campaign Against the Bork Nomination
by Michael Pertschuk, by Wendy Schaetzel
Thunder’s Mouth Press, 317 pp., $13.95 (paper)
Three years ago, on October 23, 1987, the Senate voted not to confirm Ronald Reagan’s nomination of Robert Bork to serve as an Associate Justice of the Supreme Court of the United States. Only eleven Supreme Court nominations have been rejected by the Senate, and no nominee has ever been defeated by as large a margin as Bork. Yet no one accused Bork of private vices, or challenged his intellectual competence. The campaign against him attacked his ideas about the Constitution, and his attitude toward those—judges, academics, politicians, and citizens—who held different views from his. The battle was fought not in the back halls of Congress but in public: Bork’s opponents conducted an elaborate and effective national campaign in the press and television, and the televised hearings on his confirmation concentrated national attention on the Constitution and on constitutional theory to a degree that has seldom if ever been equaled in our history.
Was Bork fairly treated? Was his defeat good or bad for constitutional justice in the United States? In his own book, The Tempting of America, Bork himself claims that he was defeated, by unscrupulous means, precisely because his appointment would have helped to restore legitimacy to constitutional adjudication.
Much of his book is devoted to a critical historical survey of constitutional law, in which Bork’s aim is to show the extent to which the justices of the Supreme Court have allowed their own political convictions to influence their decisions. He claims that justices have made political decisions from the earliest days of the Court onward, and that this practice, which he believes to be outrageous, became firmly entrenched, the rule rather than the exception, in the modern Court.
Bork’s complaint that the modern Court plays politics is well illustrated by his discussion of Griswold v. Connecticut, the 1965 decision which held that states may not prohibit the use of contraceptives. In that case, the Court recognized that individuals have a constitutional right, which it called a right of “privacy,” to be free from governmental interference in certain matters of personal choice. It relied on the Griswold case as a precedent when it held, in its 1973 decision in Roe v. Wade, and in other cases, that the right of privacy includes a limited right to an abortion. In 1986, however, in Bowers v. Hardwick the Court rejected the claim, which also relied heavily on Griswold, that laws prohibiting sodomy are unconstitutional. Bork offers the Griswold decision as a clear and extreme example of judicial politics. He deplores the result in Roe v. Wade as an extension of the mistake the court made in the Griswold case, and applauds the result in Bowers as a return to “the original understanding” of the Constitution.
In his confirmation hearings, Bork suggested that he would not want to reverse the outcome of the Griswold case; but in his book he returns with some vehemence to his earlier clear opposition to that decision. His characterization of …