
          The Cold Hard Truth: Wishing Justice for Bork
          By Chestnut, J.L., Jr.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 

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.
          
        