Judge Robert Bork is the most qualified American alive to serve on the Supreme Court. Not since the great Holmes and Frankfurter have we had a jurist with such impeccable credentials. Legal resumes get no better than Judge Bork's. He practiced law in Chicago. Then he taught at Yale Law School, until leaving to become U.S. Solicitor General, the government's top litigator. He returned to Yale as the Alexander Bickel Professor of Public Law. After a stint as a law partner in Washington, he was approved unanimously as an appeals judge on the District of Columbia Circuit. Not one of the 416 opinions he has written or joined has been overturned by the Supreme Court. During this entire period, he has inquired boldly and publicly into the nature of law and our society. As a student at the University of Chicago, he made the conversion from mild socialist to enthusiastic democratic capitalist. At Yale, he moved from pure libertarian to the Founders' view of ordered liberty under the rule of constitutional law. He has written wisely on many topics. His "The Antitrust Paradox" is the book with the single most influence on the Supreme Court. Many federal judges look to his 1984 lecture on "Tradition and Morality in Constitutional Law" as a guide to approaching constitutional issues. His integrity and intellect have won admirers who range across the political and ideological spectrum. Lloyd Cutler, counsel to President Carter, supports Judge Bork as a jurist who "believes that judges should interpret the Constitution and the laws according to neutral principles, without reference to their personal views as to desirable social or legislative policy." Despite his pre-eminent qualifications, in the last few weeks an awful fury has been unleashed against Judge Bork, centered on the canard that he is somehow outside the legal mainstream. But Robert Bork is not a "right-wing activist." He does not have a list of public policies he would use his clout on the Supreme Court to achieve. Any likely alternative, such as Orrin Hatch, would be a much more activist judge, though a far less distinguished one. Judge Bork's critics do indeed have much to fear from him, but they have not been honest about what keeps them up nights. Their fear is precisely that the power of his intellect and scholarship would leave his stamp on the law and the nation. They do not oppose him because he is unqualified; they oppose him because he is overqualified. They would much prefer Senator Hatch. Judge Bork is the leading proponent of judicial restraint. This doctrine is nothing more radical than the assumption of our constitutional democracy that judges must be the "least dangerous branch." That judges should set aside the decisions made by the elected branches of government only when the Constitution demands it. That judges must not concoct new rights in order either to further their own political preferences or to extend their power over the other branches. That they should not obfuscate their opinions by inventing five-layer, three-prong tests. That they should refuse to hear cases that raise purely political, not legal, issues. These once-conventional doctrines are seen as threatening by the elites of the law schools, bar associations and judiciary who enjoy the power of activism. Judges are usurping the role of others by running school systems, jails and the telecommunications industry. To the hurrahs of many liberals, judges busily discover new rights in constitutional "penumbra." The Bork nomination, says Hodding Carter, "requires liberals like me to confront a reality we don't want to confront, which is that we are depending to a large part on the least democratic institution, with a small 'd,' in government to defend what it is we no longer are able to win out there in the electorate." Yet in attacking Judge Bork his opponents have not been willing to defend judicial activism against judicial restraint. Instead, he is caricatured. Critics claim he is an agnostic, yet in favor of school prayer. One case where Judge Bork ruled for a labor union against a federal agency was classified by critics as "pro-business" because unions are "in the business" of representing workers. In another case, he ruled against a conservative group picketing near the Nicaraguan and Soviet embassies. Which is it? Liberal or conservative? Or does he apply legal principles neutrally, without regard to the parties? The critics chased themselves into the corner of results-based evaluation of prospective judges by drawing the logical conclusion of judicial activism. Law is just politics, judges just politicians in robes. As the Justice Department says, they "view courts as simply another political playing field for competing special interests" with judges ranked "the same way they rank politicians: according to the number of times they deliver results desired by a particular special interest to further a political agenda." The campaign against Judge Bork is shrill, mean and anti-intellectualan assault on the notion of law itself. His critics are living evidence of how badly he is needed on the Supreme Court.
Legal resumes get no better than Judge Bork's. The judge is a former prosecutor who has been on the bench for more than 20 years. None of the 416 opinions he has written or joined has been overturned by the Supreme Court. Nevertheless, he has been subjected to a fury centered on the canard that he outside the legal mainstream. Why? Because the once conventional doctrine of legal restraint is believed threatened by the elites of law schools, bar associations and judiciary who enjoy the power of activism. Liberals want to defend their ability to accomplish in court what the electorate is unwilling to enact.