Posted 8:05 PM by Robert

Sailing To Washington

O sages standing in God's holy fire
As in the gold mosaic of a wall,
Come from the holy fire, perne in a gyre,
And be the singing-masters of my soul.
Consume my heart away; sick with desire
And fastened to a dying animal
It knows not what it is; and gather me
Into the artifice of eternity.

Once out of nature I shall never take
My bodily form from any natural thing,
But such a form as Grecian goldsmiths make
Of hammered gold and gold enamelling
To keep a drowsy Emperor awake;
Or set upon a golden bough to sing
To lords and ladies of Byzantium
Of what is past, or passing, or to come.

Sailing to Byzantium - William Butler Yeats

Many conservative lords, ladies and sages of Washington (including many actually located in that city) despair of Harriet Miers' scant record, as expressed in this National Review editorial:

We are left with only stray clues to Miers’s value system. Unlike John Roberts, or for that matter Ruth Bader Ginsburg, Stephen Breyer, or Clarence Thomas, Miers comes to the highest Court in the land as practically unknown quality, a gamble for incredibly high stakes.

There seem to be two related concerns: It is said that we don't know what Ms. Miers now is, and, even if she is acceptable now, her lack of a well developed "Constitutional philosophy" means that we cannot know what she will become. Ms. Miers' critics sometimes seem seriously confused between the two. For example, this National Review editorial absurdly argues that Justice Blackmun "was a loyal Republican; but almost as soon as he arrived on the Court, he was transformed." In fact, Justice Blackmun was famously dominated by Warren Burger (could there be worse evidence of Blackmun's intellectual frailty than this) for many of Blackmun's first years on the Court, to the point where the two were known as the "Minnesota Twins." It was only in his later years that the "twins" diverged. Or are we suppose to believe that Warren Burger was also "transformed?" (On the other hand, the editorial's concern that Ms. Miers' personality suggests that she is at risk of becoming a justice in the mold of Sandra Day O'Connor may be better placed - I haven't settled that point in my own mind.)

Looming over all, like T.J. Eckleberg loomed over the Valley of the Ashes, is the brooding omnipresence of Robert Bork. Practically every conservative criticism of Harriet Miers cries out, sometimes explicitly, sometimes in secret harmonies: This is so disappointing! We could have had a Robert Bork! Indeed, Mr. Bork himself, not content to watch silently while disaster looms as Dr. Eckleberg did, stated that the Miers' nomination was "a disaster on every level," and, lest anyone mistake him for understated, further explained:

[S]o far as anyone can tell she has no experience with constitutional law whatever. Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by. ... There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the original principles of the Constitution. And all of those people have been overlooked.

But set aside for the moment questions about what Ms. Miers - or any candidate - is at the time of elevation to the Court. Assume for the purpose of the argument that it can be firmly established that Ms. Miers is now a conservative in all relevant terms. (This may be a non-trivial assumption in Ms. Miers' case. The National Review argues, for example: There is very little evidence that Harriet Miers is a judicial conservative, and there are some warnings that she is not. ) Is it right that one can obtain a significantly better grasp of what a candidate will become once on the Court for a while where the candidate has a well developed Constitutional philosophy that can be reviewed? That seems to be what Robert Bork is suggesting. Such an assumption also seems to animate David Frum. And there are many others.

But I'm not so sure. One thing one knows is likely true about someone who is brilliant and has worked out an entire personal consistent Constitutional philosophy is that such a person likes to constantly tinker with their own thinking on the Constitution. So why shouldn't one expect that such a person will continue to tinker and change his or her thinking about the Constitution more than other people? For example, think "brilliant judge and academic legal thinker" and pretty quickly you're probably thinking "Richard Posner." But Richard Posner would be the first to tell you that his thinking about the law has changed vastly over the years - and the propensity of his thinking to change seems not to have been inhibited by any particular philosophy that possessed it at any particular point in time.

But perhaps the most spectacular example of someone whose very elaborate and worked out Constitutional philosophies did not inhibit his subsequent changes at all may well be Robert Bork. As late as 1968, for example, Robert Bork celebrated Griswold v. Connecticut. In that year Mr. Bork wrote in Fortune magazine that Griswold showed that the "idea of deriving new rights from old is valid and valuable. The construction of new rights can start from existing constitutional guarantees, particularly the first eight amendments, which may properly be taken as specific examples of the general set of natural rights contemplated." His 1968 Fortune article completely rejected the need - even the possibility - of finding the "original meaning" of the Constitution. In "The Supreme Court Needs A New Philosophy," in the December 1968 edition of Fortune (pp 140-141), Mr. Bork put it this way:

[I]t is naive to suppose that the [Supreme] Court's present difficulties could be cured by appointing Justices determined to give the Constitution its true meaning," to work at "finding the law" instead of reforming society. The possibility implied by these comforting phrases does not exist.... History can be of considerable help, but it tells us much too little about the specific intentions of the men who framed, adopted and ratified the great clauses. The record is incomplete, the men involved often had vague or even conflicting intentions, and no one foresaw, or could have foreseen, the disputes that changing social conditions and outlooks would bring before the Court.

That hardly seems like the Robert Bork we know today. But Mr. Bork's evolutionary path was not linear or simple. In 1968 he wrote that the First Amendment protected not only political but non-political speech, and a lot more:

[N]on-political speech too, of course, is entitled to some degree of constitutional protection. Brandeis cited other values of speech that are not unique to the political variety. For both speaker and hearer, speech may be a source of enjoyment, of self-fulfillment, of personal development. It is often mundane or vulgar or self-serving, but it may be exalted, inspired by the highest motives. It may affect attitudes that ultimately impinge on the political process. All this has implications that, though generally overlooked, seem inescapable. For in these respects nonpolitical speech does not differ from nonverbal behavior, whether it customarily bears the label "sexual," "economic," "artistic," or some other. One could argue, then, that all human behavior should be entitled to the same level of constitutional consideration, the same judicial scrutiny of governmental regulation, that is currently afforded to nonpolitical speech.

"All human behavior?" Really? Sex? And drugs? And rock-and-roll? From such sweeping comments, it seems as though in 1968 at least Mr. Bork thought Mr. Bork had a well worked out Constitutional philosophy - and one that allowed for plenty of left-wing (or libertarian) judicial activism.

It didn't last three years. In 1971, he published a famous article "Neutral Principles and some First Amendment Problems" in the Indiana Law Journal, which argued that the First Amendment only covered political speech, narrowly defined. In that article Mr. Bork also openly admitted that he had reversed his position on Griswold. Where in 1968 he had written that Griswold was "a salutary demonstration of the Court's ability to protect fundamental human values," his 1971 article said of Griswold: "[A]t the time [that is, 1968] I thought, quite erroneously, that new basic rights could be derived logically by finding and extrapolating a more general principle of individual autonomy underlying the particular guarantees of the Bill of Rights." Mr. Bork also wrote in the 1971 article that Griswold was "an unprincipled decision, both in the way in which it derives a new constitutional right and in the way it defines that right, or rather fails to define it."

By the time of his confirmation hearings in 1987, Mr. Bork was still characterizing Griswold is illegitimate - and, as far as I know, that has not changed. But somewhere during the 1970's Mr. Bork's view of the First Amendment widened again, and he expressly repudiated the claim he had made in his 1971 article that the First Amendment applied only to political speech. Indeed, it is almost impossible to overstate the dimensions of the swings in Mr. Bork's understanding of the First Amendment. In 1968, he indicates that it not only protects non-political speech, but all human activity. Three years later, the Amendment protects only political speech - with a narrow definition. A few years after that, the scope of the Amendment's protection has widened considerably.

I do not intend to criticize any aspect of Robert Bork, or the evolution of his thinking, or any aspect of his thinking. But it is clear that his possession of a whole set of various Constitutional philosophies has never encumbered his ability to change them - in very serious and surprising ways. No Constitutional philosophy of Robert Bork has ever been sufficient to gather him into the artifice of eternity. Of what is past, or passing, we can and should investigate and question. But, contrary to many of Harriet Miers' finer critics, I'm not convinced that a candidate's worked out Constitutional philosophy gives us a substantially and incrementally surer understanding of what is to come.

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