Is Judge Robert Bork a sexist, racist bigot with an ideological agenda for putting blacks and women back in their places?
Having read much of Bork's controversial writings and watched the Senate hearings on TV, I'm inclined to answer: no.
Are Bork's critics, then, exaggerating the danger to women and minorities that his confirmation as a Supreme Court justice would entail?
On the basis of those same hearings and writings, my answer is: I don't know -- but I'm worried.
I don't believe for a minute that the controversial nominee desires the return of women and blacks to second-class citizenship. I don't see him as a right-wing political ideologue bent on turning back the civil rights clock.
Rather, he comes off as a man who believes that many of the civil rights gains are, no matter how fervently he endorses the results, based on unwarranted interpretations of the Constitution.
If he were a legislator, I don't doubt that he would support legislation to ensure those rights. But he has been nominated for a seat on the Supreme Court, whose job, he insists, is not to make law but to interpret the Constitution. If, in his view, those rights are not to be found in the Constitution, then how could he, in some future court test, fail to vote his beliefs?
"I have never said anything or decided anything that would be frightening to women," he told Sen. Howard Metzenbaum during Friday's hearings. I can accept that he believes he has never said or decided anything that should have frightened them.
But the statement is beside the point. His opinions as a federal judge are guided by both his constitutional views and the rulings of the Supreme Court. A judge is bound by Supreme Court precedents no matter how wrongly based he believes the precedents to be.
But to what degree would Bork as a Supreme Court justice consider himself bound by the court's previous rulings? I don't know, and the strong suspicion is that Bork doesn't know either.
Longstanding rulings, apparently, would be safe from a Justice Bork, given his stated views on the weight of precedent. Thus, he has indicated he would be inclined to reject any future challenge to school desegregation in the District of Columbia, even though he believes the original 1955 decision was wrongly based.
But what of such more recent decisions as Bakke or Weber or Roe v. Wade ? Would a Justice Bork decide new tests of these previously decided principles on the basis of precedent or his own reading of the Constitution?
Bork's devotion to precedent is not wholly consistent even with regard to long-established rulings. He has indicated that he would have joined the 1954 Brown decision, notwithstanding the fact that the separate-but-equal doctrine of Plessy v. Ferguson had been settled law for more than half a century -- not because he thought separate but equal was bad social policy but because he thought school segregation unconstitutional.
The trouble with Bork is not that he is philosophically inflexible, as some critics charge, or that he desires "bad" legal results, as other critics fear. The trouble is his near-fiendish unpredictability.
Is he the conservative constitutional scholar, lawyer and judge who, for 25 years, has been critical of the Supreme Court rulings that have increased the rights of minorities and women? Or is he the reasonable jurist who, for the past week, has been paddling furiously toward the legal mainstream?
Is he the legal accommodationist who, as a member of the highest court, would rely on that court's precedents? Or is he the legal theorist whose fealty would be to the "original intent" of the Framers of the Constitution?
Is this the sort of person on whom women and unpopular minorities should be willing to take a chance? Those groups who feel that their inclusion in the Constitution remains tentative, and who have depended on the court for protection, are not much impressed by the legal brilliancy of Bork's arguments that the court has gone too far in protecting them.
They read his unsettling words, and they say no.
I say no.