Poor Joe Biden, chairman of the Senate Judiciary Committee, is being savaged for admitting that "I don't have an open mind" about the nomination of Robert Bork for the Supreme Court. Conservatives are demanding that Biden, having prejudged the issue, should stand aside during the confirmation process. Even Mario Cuomo -- chin-pulling reflectiveness personified, as always -- has criticized Biden for reaching his conclusion before the hearings.
There are good reasons for concern about the condition of Biden's mind, but they don't relate to whether it is open or closed. These conservative complaints are wonderfully hypocritical, since they all come from people (including some on the Judiciary Committee) whose minds are equally closed on the subject.
Of course these complaints about Biden mirror liberal complaints about Bork. Biden himself complains that Bork lacks an "open mind" and has "a predisposition on every one of the major issues." He praises retiring Justice Lewis Powell for having said, "I never think of myself as having a judicial philosophy." Liberal interest groups accuse Bork of being "ideological." In response, conservatives accuse the liberals of "partisanship." President Reagan has taken to denying that his nominee has anything so nefarious as a judicial philosophy. He praises Bork for his "fairness," his "detachment," his "statesmanship." He says the issue is "qualifications" versus "politics." Bork himself says, "I don't consider myself a conservative."
Puhleez, you guys. Can't we at least have an honest debate here? The best you can say is that both sides are confusing two issues. One is whether Bork and/or his critics are more interested in using the courts to achieve a laundry list of political results than in any particular theory of jurisprudence. The other is whether it is illegitimate for Bork even to have such a theory or for his opponents to disagree with it and oppose his nomination on that basis.
Robert Bork has taught and written about constitutional law for a quarter century. He has served six years on the appellate court. If, after all this, he had failed to reach any conclusions about major constitutional issues, that would be evidence of an empty mind, not an open one. To suggest, as do his supporters, that Bork's views are unpredictable is an insult to his intellectual integrity.
But in America, "ideological" is a name-calling word. So is "partisan" or "political." So is "closed-minded" (meaning, you know what you think). Good things to be are "open-minded" (meaning, you don't know what you think), "balanced" and -- above all -- "moderate." The Bork war is being fought over possession of the linguistic territory of balance and moderation.
This notion of closed-mindedness is much in the air these days, due to Allan Bloom's best-selling book, "The Closing of the American Mind." Actually, the title is misleading. Bloom, near as I can tell, opposes open-mindedness as a quality connected to moral relativism and the general decline of values.
Although Bork and Bloom are the two great conservative culture heroes of the moment, Bork's constitutional closed-mindedness is exactly the kind of moral open-mindedness that Bloom deplores. Bork says he came to his narrow view of constitutional rights based on the conclusion that morality is just a matter of personal gratification and "there is no principled way to decide that one man's gratifications are more deserving of respect than another's." Bloom, by contrast, believes that broad moral precepts can be derived from natural law, and believes the Founders thought so too.
In the Aug. 13 New York Review of Books, Professor Ronald Dworkin powerfully undermines Bork's contention that his constitutional views merely reflect the original intent of the document's authors. Even Bork, he notes, supports Brown v. Board of Education, the school desegregation case. Yet the Congress that passed the Fourteenth Amendment also maintained segregated schools in the District of Columbia.
Clearly, then, the notion of "original intent" must be read at some level of generality or Brown goes out the window (and with it, the Constitution's claims to be something more than the Founders' own menu of gratifications). Bork doesn't disagree. In fact, he said something similar himself in a Court of Appeals opinion upholding broad First Amendment protection against libel suits even though libel suits were common at the time of the Founders. But Bork has never produced a persuasive theory to explain at what level of generality he chooses to interpret the Founders' intent in different cases, and why.
Is this asking too much? Nobody ever demanded a theory from Sandra Day O'Connor. On the other hand, O'Connor never claimed to have one that would justify undoing much of the constitutional jurisprudence of the past 25 years.
This debate seems to have gotten inverted, with Bork's opponents accusing him of having rigid judicial views and his supporters insisting that he's really a nonideological moderate with no fixed opinions. That's crazy. Bork's challengers should be demanding: "OK, buddy, what's your theory? And make it a good one."