The hearings on the confirmation of Judge Robert Bork have been a course in constitutional law for laymen like me. I would like to comment on some lessons that one layman learned.
Some members of the Senate Judiciary Committee seem puzzled by Bork. He does not behave like a candidate for office. If he had only said, "I stand for the rights of women and for the rights of men, for the rights of blacks and for the rights of whites, for the right of privacy and for the right of full disclosure, for the right to pray in schools and for the right to be insulated from prayer in schools," the senators would have recognized him as one of them. He would have been confirmed unanimously by now. But that would have been an evasion of the basic issues.
Opponents of Bork like to portray him as the enemy and themselves as the champions of the expansion of "rights," sometimes called "human rights" or "civil rights" or "minority rights." What seems to be ignored is that, in general, courts -- or legislatures, for that matter -- cannot create or expand rights. They can only transfer rights from some people to other people. If A is given a right to preferential employment, B loses a right. If X is given a right not to have his child exposed to prayer in the classroom, Y is denied the right to have his child so exposed.
Courts decide cases, in which there are always at least two parties, and each party wants its rights protected. The problem, which many senators ignore, is whose rights or which rights. What baffles these senators is Bork's recognition of the problem that a judge has to choose among rights and his effort to find some principled basis for the choice. In all of their sentimental demagoguery about rights his opponents have never explained whose rights they want to subordinate. I have heard nothing from Bork to deny that the definition and allocation of rights properly change over time, by legislative action or judicial decisions, in response to changing conditions, including community values. But what I do hear from him is a reluctance to make a leap in the dark, declaring rights in particular cases without weighing the indirect and future consequences of such declarations.
This brings up the question of precedents. There has been much discussion of whether Judge Bork properly respects the precedents created by previous court decisions. No attention has been paid to the question of a justice's respect for his successors, who may be bound by the precedents he sets. What I understand Bork to say is that a justice should not set precedents for his successors without carefully considering the full range of their implications.
The Griswold case, in which we have all had an education in the last two weeks, is an example. Here was a stupid Connecticut law banning the use of contraceptives. The question is whether the best way to get rid of that stupid law was to declare a general, undefined right to "privacy," the consequences of which were unexamined. Does Sen. Gary Hart's right to privacy outweigh the Miami Herald's right to freedom of the press? Is the minimum-wage law unconstitutional because it keeps people from privately and voluntarily agreeing on terms of employment? We should expect of a justice more judiciousness in the declaration of rights.
Insofar as Bork's opponents indicate any standard for judging which rights are to be protected, the preference seems to be for "minority rights." Some majorities, such as women and consumers, are accepted as honorary minorities. But it seems to me that it is persons or individuals who have rights and that a person's rights should not depend on the number of other people who share some characteristic with him. In any case, I doubt that Joseph Biden, Edward Kennedy and Howard Metzenbaum really want to prefer the rights of minorities. When the Supreme Court early in this century struck down state laws limiting hours of work they were protecting the rights of a minority -- the employers -- against the rights of majorities -- the workers and the legislatures that had enacted the laws. Do the senators I have named want to resurrect the rights of those minorities -- the employers?
If there is any defensible content to the attitudes toward rights displayed by Bork's opponents, it is that special concern should be exercised for the rights of disadvantaged people. I would not disagree with that, and I have no reason to think that Bork would disagree either. But two comments are in order.
First, what is beneficial to disadvantaged people is often not visible to the naked eye. A good example of that is Metzenbaum's concern for what he considers a disadvantaged group -- consumers. He believes that Bork is indifferent to the interests of consumers because he has been critical of some aspects of the antitrust laws and of the ways they have been interpreted. Metzenbaum evidently believes that anything called an antitrust law must be good for consumers. But Bork has shown convincingly that the effect of the operation of those laws in many respects has been to impair efficiency and harm consumers at the expense of businesses that are protected from competition.
Second, the preference for the rights of the disadvantaged is generally understood not to be unlimited. Every right asserted on behalf of the disadvantaged does not deserve protection. In my opinion, the steps that have been taken in the past 50 years, in Congress and in the Supreme Court, to ensure the rights and advance the condition of disadvantaged persons have been beneficial, not only to those persons but also to the nation as a whole. But one can also think of claims on behalf of the disadvantaged that would not be reasonable or helpful. For example, one often hears of a right to "employment at a decent wage" without any consideration of what is decent or who is to provide the employment.
I can understand the reaction of many blacks against the nomination of Judge Bork. But I think they are making a sad mistake. The judge has made clear his belief that the Constitution absolutely prohibits discrimination on the basis of race. His performance as solicitor general and judge confirms that. Forward-looking blacks should recognize that they share with everyone else a strong interest in having Supreme Court justices who believe that the protections of the Constitution extend to all persons.
A Supreme Court justice should have "the milk of human kindness." Judge Bork has that. But he has something else, also essential to a great justice. He has the determination and ability to look beyond the immediate consequences of judicial decisions to their total implications. That, I think, is what his opponents do not understand. And that is what will make him a great justice. The writer, a senior fellow at the American Enterprise Institute, was chairman of the Council of Economic Advisers in the Nixon administration.