Washington is a soft touch for intellectuals. At the beginning of the Reagan years, for instance, much was written about ideas and position papers cascading from the town's conservative think tanks. Six years later, they all seem to boil down to lower taxes, more defense spending and a dogmatic belief in the free market system. With the exception of defense spending, Calvin Coolidge had the same ideas -- and history does not remember him as an original thinker.
Now comes Robert Bork, President Reagan's Supreme Court nominee, blazing intellectual energy. Once a law professor at Yale, then solicitor general of the United States and now a federal appeals court judge, Bork does indeed have a claim to the mantle of "intellectual" -- and no doubt he also tests well. He is a man of many legal theories and principles. It is those that dazzle Washington.
Take, for instance, abortion. We are told Bork is not your usual opponent. Not from him do we get slide shows on the fetus in the womb, talks about infanticide and stern proclamation that a rape victim must bear the baby that is the fruit of her trauma. No. Instead, where others have raw emotions or religious beliefs, Bork has legal theories: judicial restraint and strict constructionism.
At the mere mention of those words, the Washington opinion-setters go totally ga-ga. So ethereal is Bork's thinking that abortion is merely an example of a higher principle. He believes there is nothing in the Constitution that could guarantee it. In Roe vs. Wade, the Supreme Court peered into the Constitution and found a right to privacy and, therefore, a legal option to have an abortion. Bork peered into the same Constitution and found no such thing. Therefore, abortion is not the issue. The Constitution is.
Pregnant women, of course, may not be comforted by Bork's thinking. Some could be bearing severely deformed fetuses that would, almost certainly, die some time after birth. Others might be young girls totally unable to cope with pregnancy and delivery. To them, it wouldn't matter that Bork has a judicial theory to explain a Supreme Court vote permitting states to once again outlaw abortion. The effect would be the same as if he merely opposed abortion as murder. Maybe they could be comforted with a pamphlet of Bork's writings.
Similarly, when it came to civil rights legislation, Bork had a body of thought to explain his opposition. "I was always against laws that segregated," he recently told The Washington Times. "But I also at the time had a libertarian perspective, and I was sort of against laws that controlled individuals in their association." Bork's "sort of" is disingenuous, a retreat from a position that is now untenable. Bork knew precisely where he stood.
In a 1963 New Republic article he has since recanted, Bork said he opposed the enforced desegregation of public accommodations -- hotels and restaurants. He believed in a right of association, which -- no fault of his, of course -- sometimes was abused by racists. It is worth noting, though, that in this instance, Bork opposed a legislative, not judicial, remedy. Nevertheless, he created a theory to deny a fundamental right.
To the black traveler pushing on past the frontier of fatigue to find a motel that would admit him, Bork's fancy legal theory provided no comfort. What mattered to black citizens was the reality of Jim Crow discrimination, the humiliating and infuriating fact that they were being treated in a repugnant way. No matter how stimulating a theory may be, you cannot check into it for the night.
It's impossible to know with Bork which comes first -- the theoretical egg or the actual chicken. As lawyers (and columnists) know, it's possible to work backward -- to arrive at a conclusion and then, by selective argument and witty quotations, make it appear that the conclusion was the inevitable product of rigorous reasoning. Judges can work the same way. It's often impossible to know if their conclusion is inherently political or emotional, pragmatic or theoretical.
With Bork, legal theories abound. They are concocted, published and then, sometimes, recanted -- often with wit, always with erudition. There is, though, a consistency to them. Almost always Bork has been niggardly in his morality, harsh to minorities and deferential to government authority. To many in Washington, this is the fancy footwork of the intellectual, and they are dazzled by it. But the likely subjects of Bork's writings -- women seeking abortions, homosexuals seeking their rights or individuals battling the government -- are not likely to be similarly impressed. Victims rarely are.