The resounding claim that Robert Bork should be denied confirmation as a justice of the Supreme Court because he would shatter the "delicate balance" of the present court is disingenuous. If a "swing" justice had recently retired from a similarly balanced court and a Democratic president wanted to appoint a latter-day William O. Douglas, how many of those now cherishing the preservation of the present "balance" would rejoice instead?
A more basic objection to Bork is the remarkable extent to which he might unbalance the Constitution itself. Bork, as he has often said, believes that judges, whenever possible, must defer to legislatures as the direct instrumentality of the people. Judges, after all, are unaccountable and come from a much narrower spectrum than the populace at large.
This is majoritarianism, a view that James Madison considered a clear and ever present peril to the future of the republic: "Wherever the real power in a Government lies, there is the danger of oppression. In our Government, the real power lies in the majority of the Community." And that's why, Madison added, the courts were intended to be an "impenetrable bulwark against every assumption of power in the legislative branches" that encroaches upon the rights of the people.
Bork, to be sure, has said that judicial deference to the popular will should not include those exceptions when a legislative choice "clearly runs contrary to a choice made in the framing of the Constitution."
Actually, however, except for a relatively recent enthusiasm for certain overtones of the First Amendment, Bork has often been as wary of the Bill of Rights as if it had been created by elitist appellate judges. He is, for instance, very suspicious of the exclusionary rule because, he says, admitting illegally obtained evidence is less shocking to the judicial conscience than letting "a criminal go free to prey upon the public."
Bork believes that the only good argument for keeping the exclusionary rule is that it deters "unconstitutional police behavior." If, as he suspects, that argument proves unsound, then there is no longer any excuse for the exclusionary rule.
Judge Bork, however, ignores two profound reasons for keeping the rule. The first is that it is based on the most specific, detailed section of the Bill of Rights, the Fourth Amendment. When the exclusionary rule was first imposed on the federal courts in 1912, the Supreme Court said: "The efforts of the courts . . . to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which has resulted in their embodiment in the fundamental law of the land."
The second essential reason for the exclusionary rule is that -- as Justice Louis Brandeis and other justices have emphasized -- it safeguards the integrity of the courts. Tainted evidence taints the court that admits it as well as the police who bring it.
As a majoritarian, with a rather crabbed view of individual liberties, even when they are marked with so bright a line of original intent as the Fourth Amendment, Bork also strongly believes that the majority in any community must, to keep the democratic enterprise going, have the confidence to set moral standards for that community and enact them into law. Accordingly, those whose tastes offend the majority must pay the penalty for being out of step.
During an interview last year in the journal Judicial Notice, Bork made it clear that he would have dissented from Justice John Harlan's classic First Amendment opinion in the 1971 case, Cohen v. California. Cohen, an opponent of the Vietnam War, had greatly offended many people in the Los Angeles County courthouse by wearing a jacket which advised that a carnal act be performed on the military draft. Harlan -- a conservative but not a majoritarian -- declared that the decision of what to say in public is placed by the Constitution "largely in the hands of each of us" -- not in the hands of government through the majority will.
Until now, Bork has been somewhat frustrated as a circuit court judge. He must defer to prior decisions of the Supreme Court. If confirmed, however, he will feel freer to bring the Constitution back to where he erroneously believes it was at the beginning -- a mirror of the majority.
In a recent speech criticizing Bork, Sol Wachtler, New York state's chief judge, said: "There is a place for judicial restraint. . . . But the protection of . . . individual . . . freedoms is a uniquely judicial obligation and responsibility."
If Robert Bork is confirmed, Bill of Rights and 14th Amendment lawyers will increasingly turn, so far as they can, to courts like those of New York, Oregon and other states where judges respect the popular will but do not bow before it.