The Cold Hard Truth: Wishing Justice for Bork

By J.L. Chestnut. Jr.

Vol. 9, No. 4, 1987, pp. 15-16

WASHINGTON-This unstable, political, kooky town is in an absolute frenzy, even if measured by its own unreal standards. My favorite Washington cab driver and political philosopher, Jack Curtis, who also happens to be black, was so busy denouncing "Tint? White Washington Establishment" he drove off with my luggage and left me standing on the airport curb. He had to turn around and come back.

Consistent with Jack's extremely low opinion of lawyers, he angrily assumed my two recent visits are somehow connected with helping extricate "that black skunk" (the black mayor of Washington) from his legal problems. I don't represent the mayor and barely know the man.

But, Jack's immediate concern is the nomination of the man he viciously described as "Watergate Bork and his fascist sponsors." I share Jack's apprehensions not quite his intemperate language.

Bork, as a private individual, is as far right and racist as his chief sponsors-President Reagan, Edwin Meese and Brad Reynolds.

In a 1963 article in his favorite magazine, New Republic, Bork was outrageously wrong about the proposed public accommodations bill that would require hotels, restaurants and other publicly accessible establishments to serve blacks.

Such a law, Bork wrote, would cause "a loss in a vital area of personal liberty" because it would interfere with the freedom of individuals "to deal and associate with whom they pleased for whatever reasons appeal to them." Apparently, Bork would deny that same freedom to black and white Americans who sought to associate together in these establishments.

In a 1968 article entitled "Why I Am For Nixon," in his favorite magazine, Bork wrote that Nixon represented "classical liberalism" and the Democratic Party was "an encroachment" on that liberalism. The man has a unique facility for prostituting words and truth.

In 1971, Bork wrote in the Indiana Law Journal: "constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic."

Such foolishness makes a mockery of the Constitution in general and the First Amendment in particular.

As expected, in a confirmation hearing as a District of Columbia appellate judge, Bork backtracked and explained his 1971 article was an "academic exercise...theoretical argument" written as a Yale law professor.

"As a judge," he added, "what is relevant is what the Supreme Court has said, and not my theoretical writings in. 1971." In a narrow sense, he was somewhat truthful in that assertion and I will look at a few of his rulings as a judge.

But first, a word or two on Bork. Nixon and Watergate.

In 1973, as U.S. Solicitor General, Bork bowed to Nixon and the ill fated criminal conspiracy commonly known as Watergate by firing Special Prosecutor Archibald Cox after Attorney General Elliott Richardson and his deputy, William D. Ruckelshaus, refused to do so.

Nine years later, Bork claimed he knew the Watergate investigation would continue without Cox. Bork also said Cox would have been fired in any event. That self-serving speculation diminishes in no way the fact that Bork fired Cox to please a criminally conspiring Nixon and to further Bork's professional career.

Bork, however, deserves some credit, as Richardson said recently, for standing up to Nixon and telling him to appoint another special prosecutor-Leon Jaworski. We will never know what Bork actually told Nixon but you can be sure it was less than the whole truth.

On the other hand, Bork, as a District of Columbia appellate judge, has on occasion submerged his far right opinions, followed legal precedent and written with passion on subjects in a manner which surprised the left and startled the right. However, it must be also noted he was


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writing with the Supreme Court looking over his shoulder. That is different than sitting on that Court and writing precedents. Especially for one who would embrace Watergate to further his career.

On the District of Columbia appellate court, Bork ruled against conservative students who wanted to picket outside the embassies of Nicaragua and the Soviet Union. He decided in favor of an artist who sought to put a poster mocking Reagan in the Washington subways.

In backing the right of a free press, he went further than his liberal colleagues. Libel suits that would stifle vigorous journalism, he suggested, should be dismissed almost summarily. That is a world apart from what he wrote in the New Republic as a law professor.

In dismissing a lawsuit filed by a homosexual kicked out of the Navy for that reason, Bork curiously reasoned that the implied constitutional right to privacy does not cover homosexuality but somehow "is broad enough to encompass a woman's decision whether or not to terminate her-pregnancy." What hokum!

Incidentally, the Supreme Court last year adopted that same hokum in dismissing a challenge to a Georgia anti-sodomy law.

I do not wish Bork well in his bid to become an Associate Justice of the Supreme Court.

I wish him hell.

How about that, Mr. Jack Curtis?

Peace.

J. L. Chestnut is an Alabama trial lawyer and writer.