Liberal opponents of Robert Bork -- now ranging from the NAACP to the National Education Association -- are risking frustration by creating a left vs. right argument. His critics can be discounted as a pack of unreflectives, as ideology-bound as they believe Bork to be. The campaign to block Bork's path to the Supreme Court will be strengthened if it does not become an ideological square-off.
Bork is stoppable because his past statements are so far to the right of the respectable right that he has positioned himself well beyond the zones of acceptable discussion. President Reagan's nomination of Bork is akin to Peter Ueberroth, the baseball commissioner, hiring an umpire who spent a career in the minor leagues berating the traditional rules as wrongheaded: 90-foot base paths, 18 players, three-out innings, left-field and right-field foul lines.
Behind the plate for 13 years as a Yale law professor and for five years as a U.S. Court of Appeals judge, Bork has been deriding rules that nearly everyone else on the field -- from a Kennedy in left field to a Burger in right field -- have accepted as reasonable and defendable.
The injudicious nominee grumbles about repeated "unconstitutional behavior by the Supreme Court." The "one man, one vote" reappointment ruling in 1965, acceptable to everyone except some pit bull terriers of the extreme right, has no constitutional basis, according to Bork. He questions the exclusionary rule -- the law disallowing illegally seized evidence -- because "the court ought to be at least equally shaken by the idea of turning a criminal loose upon society." Bork has criticized affirmative action and busing decisions, both which have been broadly accepted as not-perfect-but-workable solutions to racism.
Bork's over-the-edge politics are most clearly on view in his writings on antitrust. Here he is an umpire who stays on the field gesturing and shouting long after both players and spectators have gone home. In Bork's only book, "The Antitrust Paradox: A Policy at War With Itself" (1978), the argument is made that antitrust laws, traceable to the Sherman Act of 1890 and Clayton Act of 1914, have not been understood in their "sweeping implications."
"The years 1890 to 1914," wrote Bork, "witnesses the origin of every major theory that drives and directs the evolution of antitrust doctrine to this day. What the courts, the Congress and enforcement agencies have wrought since is little more than the working out of the implications of those early hypotheses ... But it is not true, as we trustingly assume, that these ideas were ever demonstrated theoretically or confirmed empirically. In that sense, the intellectual history we rely upon is false, in antitrust as in so much else of the law."
This anti-antitrust tract was written in 1978, a period when the consumer and environmental movements were strong. They had demonstrated that unaccountable corporations had been menacing public health and safety as if board chairmen were princes of their own kingdoms. Antitrust, a system of rule that provides for robust competition and a spreading of economic power, was the partner-in-reform of the two movements.
Courts and reputable legal scholars have consistently seen the dangers of concentrated economic power. The Sherman Act, against which Bork commenced his 1978 crusade, was called by the Supreme Court in 1958 a "comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time providing an environment conducive to the preservation of our democratic political and social institutions."
In "The Bigness Complex," Walter Adams, the former president of Michigan State University and now a professor of economics, writes (with James Brock): "Just as the purpose of the U.S. Constitution was to prevent cartels or monopolies from controlling the coercive power of the state, so the basic objective of antitrust is to prevent them from controlling economic decision-making in a free society."
Not for Bork. He's big on big business getting bigger: Let corporate power increase. The market, not laws, will control it. Bork never offers evidence -- though gobs of rhetoric -- for his claim that "larger size" is "more efficient." He states only that "this increased efficiency is valuable to the society at large."
Examining Bork's erratic thinking on antitrust is not as exhilarating, or easy, as socking him for his regressive views on civil or women's rights. But it shows that on his chosen subject of expertise, he is so far in the fringes of irrelevant extremism that he disqualifies himself from the debate. That alone is enough to disqualify him from the Supreme Court.
1987, Washington Post Writers Group