Archive [November 1999]

Rush: Hello, Judge! Last time we spoke, I remember that your book on the culture war, Slouching Toward Gomorrah, was all the rage. And now all of a sudden it’s become a focus of negativity. At the time, did you consider your effort to be an investigation of doom and gloom?

Bork: I regarded it as a realistic assessment. And the realistic assessment at the time was not too good. But I didn’t forecast doom. I hope I didn’t, at least.

Rush: What’s changed since then?

Bork: I think there are signs of resistance growing to the trends that the ’60s left us. You see signs of resistance, certainly, to the kind of stuff that’s in the movies and on television. Not that they have improved much, but the fact that there is resistance is encouraging.

Rush: I think there’s a greater awareness of it, too, and I think that was brought about by your book.

Bork: Well, in part, I hope.

Rush: No question about it. Now, the news media is in hysterics because of the vote against the Nuclear Test Ban Treaty. Did you happen to see any of the debate on that and the President’s press conference afterward?

Bork: No; I have great trouble bringing myself to watch him.

Rush: You’re wise. Some of us have to!

Bork: Yes — professionally. I saw the picture on the front page of the paper as he was lecturing the Republicans. That was enough.

Rush: Do you think the right thing was done with the Senate vote?

Bork: Oh, yes, I do. We’re not testing now. There’s no danger from us. And as I understand that treaty, it’s not verifiable anyway.

Rush: It’s not. And Clinton didn’t even act as if he really cared about it except as a legacy builder. If he had cared about it, he would have worked it like he worked NAFTA, which he ostensibly cared about earlier on in his term.

Bork: Yes; he just sprung it all of a sudden, without any preparation of the American people for it, without making the case to the public. I don’t know if it’s legacy or whether it’s simply posing another issue in an effort to get Al Gore elected.

Rush: Interesting point, given what he’s done for and to Al Gore. I mean, I know he wants Gore elected, because he wants the Justice Department intact —

Bork: [Laughter]

Rush: — so the unions don’t get investigated, and so he doesn’t get investigated and convicted of anything. That’s the prime reason he wants Gore, and he can’t guarantee that with Bradley. But he has done some things that have seemed to me to be harmful to Gore.

Bork: Yes. He certainly let the contrast be apparent.

Rush: As you look at this campaign, are you encouraged by anything about it? Or dispirited?

Bork: Both, as a matter of fact. I’m dispirited by the nature of the choice we’re being offered. That is, I think that Gore, Bradley, and I’m sorry to say George W. Bush, are relatively undistinguished people. If Gore and Bradley get elected, I think we’ll move to the left once again. Gore is in hock to every union and interest group there is — the pro-abortion groups, teacher’s union, plaintiffs’ lawyers, and so on. Bradley is, if anything, to the left of Gore. If Bush is the Republican nominee, I will most certainly vote for him, but without any great hope.

Rush: Were you troubled before he mentioned the title of your book in his education speech?

Bork: As a matter of fact, mentioning the title of my book didn’t bother me in the slightest. In fact my only complaint — and I intend to write the speechwriter about it — is that next time he does it, I wish he’d mention the name of the publisher, and the price.

Rush: Right! Well, you wrote a follow-up piece in The Wall Street Journal. You were piqued.

Bork: As a matter of fact I wasn’t going to write. The Wall Street Journal called me and said they thought a response was called for. So I sat down and wrote a response. I was piqued not by the reference to my book but by his criticism of the House Republicans. The House Republicans at times resemble Abbott and Costello, I realize. But they don’t deserve that kind of class-warfare denunciation. He sounded like a liberal.

Rush: That’s exactly it! My point was, if you’re going to criticize them, don’t do it with the terminology of the left. Don’t use this “balance the budget on the backs of the poor” business. That’s right out of the Class Warfare Manual.

Bork: It was terrible. I can only assume that he is trying to make himself look attractive to the middle of the road, and perhaps to some of the milder liberals. It’s too bad, especially if he governs that way. His father did that. After eight years of following Reagan around, saying “Me too” when he got elected, his father all of a sudden was going to be “kinder, gentler.” He abandoned the Reagan policies, let regulation run riot, and kept a distance from Reagan — until he got in trouble in ’96. So I hope this isn’t a reprise.

Rush: Do you consider “compassionate conservatism” to be equivalent to “a kinder, gentler nation”?

Bork: I’m afraid so. Because what it says is that conservatism is primarily not a compassionate philosophy. To label yourself a “compassionate conservative” is to try to distinguish yourself from all the other conservatives. I’m not too happy about that.

Rush: The thing about that is — and I’m only guessing, I haven’t asked anybody in his campaign — but it seems that they have accepted the notion that the media and the Administration have successfully defined conservatism in a way that nobody would want to be associated with it. Rather than tackle the unfairness of the label, and properly define conservatism, the Governor decided to say, “I am a nice guy and a conservative at the same time — watch me and I’ll show you what that is.” Rather than point out how liberalism is inherent with our compassion, by virtue of what they do to people with their dependency-creating programs.

I’d have been much happier with that kind of an approach, rather than trying to distance himself. The sad thing is that there is a kook fringe in the conservative movement, just like there is in the left, and the liberal establishment media has chosen to define the mainstream of the conservative movement with those Timothy McVeigh types, which makes it desirable for some people to want to distance themselves rather than to correct the mistake.

Bork: That’s right. Oh, I’m all for a guy running as an optimistic conservative. That’s fine. In my book I was realistic, I think, about where this culture is, and the direction it was headed —

Rush: We’re governed by emotions and not thought, and that’s got to really distress you, I’d bet.

Bork: It does indeed. Liberals want to feel good about themselves, so they do things that turn out to be very damaging to the people they say they’re helping. It makes them feel good that they are noble people. Conservatives really ought to try to explain why in the middle run, and in the long run, it’s far better for those people to be created according to the conservative philosophy.

Rush: I was watching ABC’s “This Week” the Sunday after the three days of so-called crisis and controversy following George W. Bush’s comments. During the roundtable, Cokie Roberts turned to George Will and asked him his thoughts on Bush’s speech. And George Will said, “No conservative I know had any problem with it.” Now, George Will has to know conservatives who were troubled by that.

Bork: A great many conservatives will overlook that speech on the perfectly reasonable grounds that Bush looks like the one Republican who can win. Now even in my column about Bush, in the end I said, in effect, I’m not too enthusiastic about this guy, but he may be all that stands between us and Gore and Bradley—and if so, he’s better then they are.

Rush: Well, in your Journal piece — since you bring that up — you reminded readers that Ronald Reagan did not pander to moderates. Is that what you think W is doing?

Bork: Oh, certainly.

Rush: Why would he choose to do that?

Bork: He thinks that that’s the center. And he wants to pick up the votes of the center. But I don’t think that’s the way to do it. If you look like you’re all over the place, pandering to various groups, you lose any credibility. And I think he’s losing it the way he’s going now.

Rush: Well, he hasn’t lost his popularity though. Or his fundraising. To what do you attribute his numbers going way up, even after these controversial comments? In spite of the fact that many think he’s pandering to moderates, he’s climbing the charts, the polls, at a rapid clip.

Bork: They don’t see any other winner on the horizon. And the Republicans are desperate for a winner. And in a way I certainly sympathize with them. I think Paul Gigot put it well when he was talking about the reason for Bush’s popularity. He said, “Think about if the other side gets in.” He said, “If Senator Hillary doesn’t scare you, try thinking about Chief Justice Hillary.” That’s entirely possible if the Democrats win. And that is enough to send chills down anybody’s spine.

Now of course Bush is sending out a conflicting message. On the one hand he’s talking about being a compassionate conservative, and trying to appeal to the moderates — and I think the moderate really means liberal. But on the other hand, he was trying to cuddle up to Pat Buchanan.

Rush: Well, for a while. He did abandon that position later on.

Bork: He abandoned it. Yes, he did. But I talked to one of the guys who was advising him, and said, “For God’s sake, get him off that kick.” Because he gets the worst of both worlds. Buchanan’s going to leave, and if he’s going to leave, there’s certainly no point in having him leave and take his votes with him while you’re looking bad trying to beg him to stay. You might as well just tell him that he doesn’t fit in, and you think he belongs somewhere else.

Rush: I always thought the danger was when he said, “I hope Pat stays — I need every vote I can get.” He’s opening himself up to a debate question: “Do you really need the votes of anti-Semites to win the Presidency?” I thought he ran a risk there.

Let’s assume Buchanan does leave. It looks like he is. What effect do you think that’s going to have on the Republican Party and the Presidential outcome?

Bork: I think it’s going to hurt. I know people say he may draw as many Democrats as he does Republicans. But I don’t believe it. I think he’ll draw some Republicans and a few Democrats. I think Bush, Jr. is panicked by what Ross Perot did to Bush, Sr. And he doesn’t want Buchanan to do the same thing to him. I think he’s right in the sense that if Buchanan leaves, it costs him votes. On the other hand if he’s seen pandering to Buchanan of all people, that may cost him even more votes.

Rush: Well, in 1992, Perot got 19 percent. In ’96 he got eight percent. The third-party people right now — no matter who you throw up there, as long as they’re in a third party rather than by themselves or part of the Republicans or Democrats — are polling about nine percent. And you’re right. If the election were held today and those polls were correct, Bush would win with about 47 percent, Gore would have 36, and the other guys would get their nine. It’s been said that in ’92, the 20 percent for Perot cost Bush the election. Some people say that the eight percent in ’96 cost Dole the election. But if that’s the case, why would this nine percent now not cost Republicans the election?

Bork: Oh, I don’t believe that the eight percent cost Dole the election. Dole is a good man, but a disorganized and utterly unexciting candidate. He looked like old news. And furthermore, I’m not sure that the nine percent will hold up. You know, I must say regarding Buchanan — if you get yourself into a party, the Reform Party, where you’re competing for the nomination with Donald Trump and God knows who else, you lower your credibility.

Rush: Don’t leave out Warren Beatty.

Bork: Yeah, well, and Cybill Shephard, or whatever her name is. No, at that point I think Pat would lose some of his dignity. He would be stepping down, doing battle with people who are not first rate — not even third-rate people.

Rush: Would you call Buchanan principled throughout the course of his career?

Bork: I would, up until recently. I used to like Pat. He was a feisty conservative, and he had a great gift for phrase. And he was kind to me, and I hope I was kind to him. But I think in recent years, he’s gone around the bend.

Rush: Of course everybody’s noticed it. I trace it back to some fellows he met in New Hampshire in ’92 who had been downsized, laid off, or basically shut out because their company closed down and moved to Mexico. It really moved him. And he’s become such an anti-free-trade and raise-the-borders type of person, that he’s willing to join a Reform Party which wants and has no position on the thing that used to define Pat, which was the pro-life position.

Bork: Yes. In fact I think that party’s probably predominantly composed of pro-choicers.

Rush: Libertarians at the least.

Bork: I don’t understand it. It’s a terrible fit. And I’m afraid the only explanation you can give is not a very noble explanation. And that is he sees $13 million there.

Rush: Do you think he actually believes he can win? He said recently to his Brigadeers — the people with the pitchforks — that if he made an assessment that he couldn’t win, he would not ask them for money a third time. He wouldn’t put them through it if there was no prospect for winning. Does he actually think that he can win this? And if not, why is he doing it?

Bork: I suppose to rally people to his cause, and make it a national issue, even if he doesn’t win personally. Or perhaps he’s doing it to become a historic figure. I don’t know. It’s hard to say whether he thinks he can win. I have met more people in this town who think they can be President, when it’s utterly preposterous to think that they could. We have a bunch of them running now.

Rush: Let me ask you this. I get, over the course of a year, a lot of phone calls on this program and there are so many people who would love to see you on the Supreme Court. Not just because of Roe v. Wade. It’s just because you’re a man of integrity and they know what you believe, and they’re happy that you haven’t gone off the reservation, while a lot of people have. If during the next Presidential term whoever was the President asked you to go through the nomination process again, would you do it?

Bork: Only on one condition. And that is if they choose who they want to be on the Supreme Court — and then put me up first. There will be one hell of a fight. I’ll lose, but I’ll have exhausted them up there in the Senate, and the next guy will go through easily. And I get a book out of it.

Rush: Now, Judge —

Bork: That’s a joke.

Rush: I know. But what makes you think you’d lose? Especially if George W. Bush does win this thing. Because if he does, he’ll take some additional votes in the Senate with him.

Bork: I think my time is past for that. And that’s all right. I’m having a good time where I am.

Rush: I know you are. I attended the American Spectator’s 30th Anniversary dinner, and you were a howl. You were outrageously funny that night. You obviously are enjoying yourself. But is there a part of you that would like to still be on the Supreme Court?

Bork: I wish I had been confirmed back then. I don’t have any particular desire to be nominated now. If they had reversed the nominations of Scalia and myself, we’d both be on the Supreme Court. But they didn’t. A political miscalculation of the first order. Because in between, the Republicans lost the Senate. My only chance to go in was when the Republicans were in control of the Senate.

Rush: How mentally exhausting is that job, the Supreme Court? How taxing is it on you emotionally and mentally? You were Appellate Judge, right below it. It seems to me that job would be a load of stress.

Bork: Yes. Like climbing a never-ending step ladder. One of the worst things about it is that the workload is such that you have no time to gather any fresh intellectual capital. I know as an Appellate Judge, I didn’t have time to read the articles and books about the cases I was deciding. I had to come at it with what intellectual capital I already had, and with what information my clerks could bring to me. I think that’s certainly true on the Supreme Court. So it becomes, I think, just a process of turning out the cases one after the other. Now, many of them are very important cases, but it is a laborious job, and as I say you miss the chance to add to your fund of intellectual knowledge.

Rush: That’s interesting. I remember you saying during your confirmation hearings that one of the attractive aspects of it was that it would be an intellectual feast for you.

Bork: That was regarded as a major blunder on my part.

Rush: Which I didn’t understand.

Bork: I guess it was a major political blunder. The Supreme Court is viewed by many people now as sort of a Daddy. And it’s supposed to be kind and compassionate and so forth. And the thought that you’re trying to decide a case intellectually on the merits of the law as you understand the law is regarded as a cold, heartless approach. You know, if you read the stories about retiring Justices, or Justices who die, people like Brennan and Blackman get enormously good press, because journalists like their political results. They write about how warm they are, and how concerned they are. Indeed you begin to see demand for a proportionate representation of different ethnic groups on the Court, on the theory that each one should represent a constituency. We have confused the court with a representative body, and in fact the court has confused itself with a legislature.

Rush: This takes me right into another question about what a Supreme Court is, and what Justices do. Buchanan and others have criticized George W. Bush for refusing to say that he would name only pro-life judges to the Court. Why can you not guarantee that a judge is going to be a certain kind of judge on a certain kind of case?

Bork: Well, you shouldn’t guarantee it. Let me say one thing first. There’s an odd business in which it is regarded as utterly improper for a President to ask for the views of a nominee in detail before he nominates him.

Rush: That’s what I was getting at.

Bork: On the other hand, it is regarded as completely proper for the Senate to quiz him about his views on each issue. And that puzzles me. I’ll never understand why the Senate should be allowed to do it, and the President shouldn’t.

Rush: That’s an excellent point.

Bork: But I don’t want anybody applying a litmus test such as, “Will you reverse Roe v. Wade?” Roe v. Wade is the worst decision of this century, speaking of just Constitutional law — never mind what you think about abortion. But there are lots of things that the Court has done that are not in the Constitution. I would like a litmus test such as, “Will you follow the actual Constitution as well as you can and not try to make it up?” That’s a litmus test they ought to have. And if that’s the correct test, Roe v. Wade and a lot of other decisions would get overturned.

Rush: Well, since you wrote a book about the war on the culture, if and when Roe v. Wade is overturned, what do you expect beyond the legal to happen culturally?

Bork: I think abortion will make gains in the state legislatures, because I think Roe v. Wade and the resulting wave of abortions we’ve had have made abortion popular, and people want it. A lot of people want it. So that I think the pro-life people would be fighting and losing ground… Maybe not permanently. But initially, at least they would be losing ground. You have to change the culture.

Rush: Precisely. So there would be a lot of lobbying of state legislators to make it law.

Bork: That’s right. But that would be better in a couple of ways. In the first place, that’s legitimately where the issue belongs, with the elected representatives. Because the Constitution has nothing to say either way about abortion. And secondly, abortion is really a fierce issue, a polarizing issue in this country. But it isn’t in most of Western Europe. And the reason is, that over there they decide it by legislation. Both sides have their chance, and they work out something, they come to the best compromise they can. Each side knows they’ll be back next year and fight it out again. And they don’t have this terrible feeling of frustration that the whole issue has been taken out of their hands by an imperialistic court.

Rush: Do you ever get tired, as a judge, and as a Constitutionalist, of trying to explain the Constitution to people who don’t know it?

Bork: I do. And I think that I’m a little pessimistic about it. That is, the prospect that you can educate people to understand what is in the actual Constitution.

Rush: I saw a survey the other day. An astounding number, well over 50 percent, couldn’t identify even one of the first ten Amendments. And some people did not know what was meant by the Bill of Rights. Well, what is going on in schools in America if the education establishment is so inept as to not be teaching that? Talk about “slouching toward Gomorrah.” That’s one of those areas where at least for this generation, it seems hopeless.

Bork: Well, that’s right. I remember some time ago a newspaper published examples from an exam given in about 1910 or 1914. You had to pass to get into high school. And I couldn’t pass the exam.

Rush: I know exactly what you’re talking about. It was the Minneapolis Star Tribune I saw it reprinted in as a news story. And I didn’t know the answer to any of them — but I couldn’t be expected to. But that surprises me that you couldn’t answer them all.

Bork: No, I couldn’t. The fact is we’ve been dumbing down our schools steadily now for a long time. And any attempt to make them good again has to face the opposition of the teacher’s union, which is a very powerful force.

Rush: Just a couple more things. You have spoken more eloquently than anyone else in my lifetime about the original intent of the Founding Fathers. And now Laurence Tribe in a shocker seems to have come around on the Second Amendment, arguing now that it refers to an individual right to bear arms, as opposed to a militia. His change of position in the new edition of his Constitutional law textbook has caused a huge uproar in the academic world. What does this signify, if anything, to you?

Bork: I don’t know what it signifies. Perhaps fresh research has caused him to change his mind. The oilier possibility is less flattering. Tribe’s views in the past have been known to oscillate, apparently in accordance with his ambition. While I would hate to attribute any ulterior motives to him, if one had a low mind, one might conceivably suppose that had something to do with it.

Rush: Are you working on a book at this time?

Bork: Well, yes. At least my publisher thinks I am.

Rush: If it materializes, what will it be about?

Bork: Well, it’s not going to be a bestseller. There are two books. One is commentaries on the documents in our Constitutional tradition, starting with Magna Carta, Mayflower Compact, and so forth, all the way up to the Articles of Confederation, Declaration of Independence, and the Constitution itself. The other book is about the Constitution, but it’s not a textbook. It will be about how the Constitution we live under today differs from the Constitution that was ratified. And to what extent that was inevitable, the fact that differences would occur — because some parts of the original Constitution simply weren’t realistic — and to what extent it was not inevitable but was changed by cultural views that overtook the Supreme Court, particularly in the Bill of Rights area, and what can be done about it. Also, I’d like to try to trace the course of the Court’s constitutional jurisprudence with respect to the course of our culture. Because I think the two are very closely allied.

Rush: These are not uninspired ambitions you have here. These are lofty. Both these books. I for one, especially the first one, would be fascinated to read it. In which case it might become a bestseller.

Bork: Well, the last book, Slouching Toward Gomorrah, got as high as No. 2 on The New York Times bestseller list. The reason it didn’t make No. I was that they cleverly classified Dilbert as “nonfiction.”

Rush: Well, it’s remarkable that you retain your sense of humor throughout all this. Maybe someday you’ll be able to write the book, Running Toward the Shining City on a Hill.

Bork: [Laughs] All right.

Rush: I hope you do, and thanks again for your time. It’s always a thrill and a great opportunity to be able to talk to you.

Bork: It’s good to talk to you, and I mightily enjoy what you’re doing.