Robert Bork’s Supreme Court nomination - 18 September 1987

Before we come to the greatest daytime television show since Irangate, and one that is something very rare in daytime, or for that matter night time television, a show that is intellectually fascinating, I wonder in how many countries of the world the most important, and most heartening, news story of last week was dignified with big front-page coverage?

It was the signing by 24 nations in Montreal on Wednesday of an agreement to limit, and eventually prohibit, the use of the chemicals that are used in everything from hair sprays to refrigeration to packaging, that are thinning our our planet's ozone layer, which, if it goes on shrinking at the present rate, could in, it's estimated, 30, 40 years from now, expose the human race to near-lethal doses of the sun’s ultraviolet rays.

Also, that meeting faced for the first time, so far as I know in an international conference, the unsuspected menace of something we have come to think of as one of the great boons and blessings of modern life, plastics – plastic cups, plastic wrappers, aluminium foil and the rest. Which are, unfortunately, indestructible and will eventually clutter the landfills of the world.

I believe Italy is the first country to attack the problem on a national scale and I am proud to say that my county at the end of Long Island, Suffolk county, is the first one in the United States to set a date for prohibiting the plastic wrapping of all foods in supermarkets, stores and so on. I don’t quite know where this leads us with our meats and fish and vegetable and so on but, I’ll keep you posted. If, the ultraviolet doesn’t get me first.

Now, a very striking face and figure have appeared on the covers of our news magazines and, this week, on our television sets that a year ago, or less, not one American in ten thousand, could have put a name to. I am looking at a colour photograph, now, of this imperious face, with its amused, sceptical eyes, and an open hand that appears to be on his heart, that is actually holding together the folds of a black gown, that goes all the way up and then closes at his neck, allowing only the fringe of a golden, tufted beard, to intrude on it.

He looks like some worldly, confident burger in a Rembrandt painting. A judge perhaps? He is, in fact, a judge, of one of the courts that sit on the base camp just below the peak, the Supreme Court of the United States. He is a judge of the Washington DC court of appeals, any of its judgments that are challenged go next and finally up to the Supreme Court.

And that is where this judge had long hoped to go, after six years on the court of appeals. His name is Judge Robert Bork. But when a close friend of his, Judge Antonin Scalia, was named to the Supreme Court last year, and approved by the Senate, which the Constitution requires, Judge Bork decided that was that.

However, what neither he nor most of us expected, Justice Lewis Powell – crowding 80 and a greatly-respected moderate on the highest court, confessed a month or two ago that he no longer felt up to the intense and continuous work of the court, and resigned.

President Reagan promptly took the advice of legal friends, and named Judge Bork to fill Justice Powell’s place, so he was nominated. In most countries, I suppose, the naming of a high court judge is something that does not bring out the prime minister, Cabinet members, lawyers and other experts of witnesses, to uphold or to challenge the nominee's qualifications before a committee of the parliament sitting in open session, for days on end in the brilliant glare of national television.

Before television, such a hearing, such a genteel – and sometimes, not so genteel – inquisition was always held in public in this country, because of the unique power of the United States Supreme Court. Today, what the law is in everything, from conglomerates to the death penalty from the right of a woman to have an abortion, to the right of a bus passenger not to have to listen to piped-in music, from equal pay for women to the right of a little black girl not to have a walk a couple of miles to a black school – a decision in 1954 that sparked the black revolution of our time – to the right of a president to keep secret papers or taped conversations that might incriminate him in a committee of the house considering charges of impeachment.

That right, 13 years ago, was denied by the Supreme Court to President Nixon, and led within three weeks to his resignation and disgrace. And I wrote then, two days before Mr Nixon had made up his mind whether to go or stay, in the enormous reverberation of his downfall we should not forget that what doomed him in the end was the eight to nothing verdict of the Supreme Court that he must deliver up what turned out to be the fatally incriminating tape.

It was an assurance the country had sadly needed that in any show-down about the supreme power of the land, the court, representing the people of the United States is supreme and not the president, whoever he is.

Course, the court doesn’t rule on everything brought before lower courts, but only on cases in which the liberty of the subject appears to be threatened or denied. The court is there to defend the rights of an individual against anybody, any state law, city law, any person, any institution including the government that seems to threaten those rights.

Judge Bork himself on the court of appeals has ruled in favour of a woman who sued the state department, and another suing the defence department. On questions of equal pay for equal work, or equality of promotion in those two cases the defendant was named Shultz and the other Weinberger – namely the secretaries of state and defence.

There is a continuous argument about the court's definitions of the often very general language of the Constitution, no wonder when you think of its forbidding, for instance, cruel and unusual punishment or promising the equal protection of the laws, or the right peaceably to assemble, or not to make a law respecting an establishment of religion.

All these melodious phrases have been interpreted differently and thought over and redefined down the two centuries of the Constitution. And since they were written by an extraordinarily astute and imaginative body of men in the 18th Century it’s obvious that they must, or might, have thought differently about cruel and unusual punishment from the way we think today.

And to whom does equal apply, in the equal protection of the laws. It’s no wonder that the court has a unique power to discipline American society, and to maintain the force of its laws. For in the end, the constitution is what the nine judges, or a majority of them, say it is.

And because different presidents with different ideologies, different theories of what the law should be, because they naturally choose judges they believe to be sympathetic to their own views – and this has been true of every president since Washington – we could get to a point where, say, about half the court, had been appointed by a liberal president, and another half by a conservative president.

It could happen and it has now happened that the eight remaining members of the court, just about split evenly between liberals and conservatives, therefore its bias could be decided by the appointment of the ninth member. And because Judge Bork has travelled the ideological gammet from youthful socialism to middle-aged democratic liberalism, and now to a guarded, he says, moderate conservatism, liberals, liberal Democrats and liberal Republicans alike, are up in arms. Or at least, they're haunted by nightmares in which the plot of progress will be turned back to the segregation of the races, to the policemen and in the bedroom and other bugaboos.

And the conservatives, specially the hard-liners, mostly the far right of the Republican party, are fawning over Judge Bork in the conviction that he is going to reverse the 1974 court decision allowing abortion, that he would resist an equal rights for women amendment, that he will sanction school prayer in schools, and otherwise return the country to customs and laws that existed before they were changed by what was, 10, 20 years ago, a liberal majority.

The alarm on one side and the euphoria on the other, the whole hullabaloo about Judge Bork's confirmation is due to the simple arithmetical fact that because of the split he does seem to be the swing vote, to hold the Constitution in his hands, that the constitution could become what Judge Bork says it is.

Well, after the present hearings of the Senate judiciary committee and after their vote it goes to a vote of the whole Senate. And of course, it’s too early to say how that vote will come out.

Only one thing I dare to guess: if Judge Bork is confirmed he will surprise both sides. He is, even now, neither a two-headed Reagan monster, nor a closet liberal. Whatever he is, if the whole history of court appointments holds, he will be a different man on the court.

He is there for life, paid up for keeps, beholden to no party or person. He can, as so many controversial judges have shown, amaze everybody by consulting only his conscience and becoming nobody’s man but his own.

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