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« Back to Is there an Imperial International Court? main page    Transcript for: Is there an Imperial International Court?THINK TANK WITH BEN WATTENBERG#1129 Robert Bork FEED DATE: October 16, 2003 ROBERT BORK Opening Billboard: Funding for this program is provided by... (Pfizer) At Pfizer, we’re spending over five billion dollars looking for the cures of the future. We have 12,000 scientists and health experts who firmly believe the only thing incurable is our passion. Pfizer, life is our life’s work. Additional funding is provided by the Lynde and Harry Bradley Foundation, the John M. Olin Foundation, the Bernard and Irene Schwartz Foundation, and the Smith Richardson Foundation. BEN WATTENBERG: Hello, I’m Ben Wattenberg. A core complaint of many American conservatives is that judges and not elected representatives have been making laws, not just interpreting them. Now a new book by Robert Bork questions the basis of such legal activism not only in America. Judge Bork argues that a “New Class” of elites is using judicial review to outflank majorities and push through a radical social agenda, worldwide. Are judges overstepping their authority? Are there remedies? To find out, Think Tank is joined by Robert Bork, senior fellow at the American Enterprise Institute, former U.S. Solicitor General, and the author of Coercing Virtue: The Worldwide Rule of Judges. The topic before the House: Is there an Imperial International Court. This week on Think Tank. WATTENBERG: Judge Robert Bork welcome to Think Tank. ... BORK: Glad to be with you. WATTENBERG: Again, you have been on this program before. BORK: Um hm. WATTENBERG: Okay. Your new book is entitled Coercing Virtue: The Worldwide Rule of Judges. give me in a nutshell what – what are you writing about? BORK: Well I’m writing about the fact that judges in all western nations have begun to become activists, by which I mean they’ve begun to find things in the constitutions of their various countries that aren’t there and to expand rights against majorities without warrant in their constitutions and that is a result of judges taking part in the culture war which is an international phenomenon. There is a – you want to call it the intellectual leak, or you want to call it the Olympians, there are various names for it but these are people, oh say, university professors, law school professors, journalists, media and electronic and print church bureaucracies often... WATTENBERG: Right. BORK: ...Hollywood celebrities. And they have different value systems than do the majority of the American people. WATTENBERG: And – and – and you – you talk in the book about the American disease. Ex – explain that. BORK: Well, the Canadians when they adopted their charter of rights and freedoms in 1982 said they wanted to avoid the Can – the American disease which they identified as judges doing what I just said – taking over things that really belong to – to a democratic government and taking it away from the people and from the legislatures. But once they got their own supreme court and their own constitution, their own charter, they discovered it’s not an American disease. It’s a judicial disease. Judges do – behave this way everywhere they’ve been given the power of juridical review - the power to [crosstalk]... WATTENBERG: Now if - if I remember my – my college course in - in history, judicial review is established by Marbury versus Madison. Is that right? BORK: That’s right. WATTENBERG: It’s not in the constitution as such. BORK: No. But you – I have no objection to inferring the right to – the power of judicial review because in many ways it’s very helpful. In some ways it’s necessary. WATTENBERG: I wanted to ask you about that. I mean because on some issues like Brown versus Board of Education which did away with school segregation in those states that were segregating Black students, rather voting right [unintelligible] Voting Rights Act, which allowed African Americans to – to vote in those states where they were being prohibited, now in – in your view was the Supreme Court wrong to intervene in that? BORK: No. I think Brown against Board of Education could have been rooted solidly in the constitution and I’ve explained that in another book. Unfortunately, what the court did – the court didn’t think so and the court wrote a very silly opinion and that gave them the impression that if they decided to do good whether or not they were applying the constitution they could go ahead and do it and get away with it. as I say, Brown against Board can be justified under the actual constitution but the Supreme Court didn’t do that. WATTENBERG: [crosstalk] Under – under what tenet of this – of the constitution? BORK: Equal protection clause...the equal protection of the laws. WATTENBERG: That’s what – Fourteenth Amendment? BORK: Yeah, that’s right. Both Civil War men. WATTENBERG: I called Jeffrey Rosen who’s a law professor and writes for the what at the George Washington University I guess, and – and writes frequently for the New Republic and – and is sort of the anti-Bork on – on a lot of these issues and he gave me some data which that the Rehnquist Court, which is regarded as admittedly narrowly a conservative court, has struck down twenty-six Federal law enactments since 1995. That’s 3.25 – I did the math. That’s 3.25 'striking down’s' – what’s the term for that, striking downs? BORK: Well that’s one term for it. WATTENBERG: Okay, striking downs. 3.25 per year and in the first two hundred years of the Constitution the Supreme Court struck down only a hundred and twenty-seven Federal laws. .63 per year. The gist of it being that it – under this putatively conservative court there have been five times more striking downs by the court than there had been in the past and that conservatives once they get in power they want to do things like strike down certain aspects of affirmative action and strike down certain aspects of campaign finance. BORK: Yeah well, let’s – let’s get – let’s get a couple things straight. In the first place it’s preposterous to call this a conservative court. This is a liberal court without doubt. You’ve got four solid liberal votes. WATTENBERG: You’ve got four solid conservative votes, also. BORK: No, no. You have three. and... WATTENBERG: Kennedy you don’t count as a solid conservative? BORK: Kennedy, wrote the opinion saying that homosexual sodomy is a – is a constitutional right. That is not what you might call a conservative position, and furthermore, it does not come out of anything in the Constitution. But let’s go back to the original idea. After Marbury against Madison, which struck down a statute, in 1803, there was no more overruling of the legislature until the Dred Scott decision right before the Civil War, which found a constitutional right to hold slaves. WATTENBERG: Which you call in – in the book the worst decision the Supreme Court ever made, I think. BORK: Well, the worst decision of the uh – of the nineteenth century. WATTENBERG: The nineteenth century, right. BORK: ’Cause we got a few honeys in the twentieth century that ought to be men – mentioned. Then you did have some – you’ve had a conservative court for awhile in the first part of the twentieth century and they did strike down laws they had no business striking down and the most famous case there is Lockner against New York which said the legislature could not set hours and hours legislation for bakers in New York state. Now there’s nothing in the constitution that prevents New York from doing that, but a conservative court struck it down which was quite wrong. But from – in 1937 on, Franklin Roosevelt remade the court and you began to get... WATTENBERG: Re – re – remade it – I mean, he tried to [crosstalk]... BORK: They tried to pack it, but [crosstalk]... WATTENBERG: But – but – but – he – he was – he was President for four terms and he – he – engaged in [crosstalk, unintelligible] role of – of – appointing judges subject to the advice and consent of the... BORK: That’s right but in a – in a very short order, he had seven appointments which completely remade the court. Then you began to get a more liberal court and after say in the 1950s, it’s been a consistently liberal court up until today and it continues today... WATTENBERG: Well look. In the last – I hate to get into statistics. You know me Bob, but in the last twenty-four years, if you count George W. Bush’s as a full term, two thirds of the time have – have been republican presidents. Now, how – how could it be and people I mean other than you do go around saying, 'it’s a conservative court', I – I didn’t make this up. Uh... BORK: Liberals made it up. WATTENBERG: Yeah, well – but – but – but so, what you’re saying is you had conservative presidents including Ronald Reagan and or George W. Bush has – hasn’t appointed anybody yet – that they have been going around wittingly or unwittingly appointing liberal justices. BORK: Unwittingly, two – two things account for that. You don’t know when you appoint somebody typically, what that person’s judicial philosophy is. The other thing is an unconscious conditioning. In – in this century – in the last century, twentieth century, there are many examples of judges who – justices on the court who went on the court and moved left. There are no examples of justices who went on the court and moved. WATTENBERG: Well how – how – how can it be that – I mean, if it’s true it’s liberals doing the complaining but there – there – there’s a lot of – there’s a lot of truth to it that there is this whole cultural conservative infrastructure. There are organizations, there are publications, there’s talk radio, there’s talk television, there are Think Tanks, why haven’t they been able to – to – to swing the hearts and minds of some of these justices? You – you know all these guys. You play poker with a lot of them or have in the past so – so what’s wrong with the conservatives? I mean, [crosstalk]... BORK: Well that’s right. What’s wrong with the conservatives? WATTENBERG: ...they’re – they’re – they’re shooting’ blanks is what you’re telling’ me. BORK: Well there aren’t that many of them. For one thing if you look at the [crosstalk]... WATTENBERG: But you have – but you have this whole infrastructure in America. BORK: If you look at the infrastructure and ask yourself what are the universities like? They’re very liberal. What are the law schools like? They’re very liberal. What are the major network news programs? Very liberal. What is the New York Times and the Washington Post? Very liberal. And you get to [crosstalk]... WATTENBERG: Washington Post – Washington Post is – is... BORK: What is Hollywood? Very liberal. WATTENBERG: No..., well. I mean [crosstalk]. Here’s a publication that publishes George Will and Charles Krauthammer. This is not a Johnny one-note paper. BORK: No, it’s much better than that, but – the editorial page is much more balanced than the New York Times is, but by and large the news coverage is liberal. Then you have Hollywood and all the celebrities. A very liberal enclave out there. Now these are the people who are making who are making their values known. They are the people who have the control and the means of communication and I think when a justice gets on the court even if he doesn’t – isn’t aware of it, he discovers that as he makes – moves to the left he gets applause from the universities, from the law schools, from the media, from Hollywood, etcetera. If he moves to the right, he gets denigrated by those same people. And I usually illustrate it with a professor who taught his class about how to condition people unconsciously – they don’t know they’re being conditioned. And the class tried it on him. And he was a pacer. He walked between the wall with the – to the hallway, and the wall to the outside of the windows. And as he walked towards the wall – wall with the hallway, the students rustled their papers and looked around and stared at their watches. They paid no attention. As he walked the other way, the class began to listen intently, take notes, and so forth. WATTENBERG: I mean did... BORK: Within fifteen minutes they had him pinned to the outside wall, and that sort of thing happens... WATTENBERG: I mean he – – this was a – a planned experiment – a – a -... BORK: Yeah. On him. They didn’t know that they were gonna do it. He wasn’t aware that he was being conditioned. But he – they moved him all the way over there. And there’s some of that I think takes place with all judges. If they find that they’re praised in the major outlets and so forth, they tend to move in that direction. WATTENBERG: Well the – the – the recent decisions on affirmative action, sort split the difference, didn’t they? They – they ruled that for graduate schools uh – why don’t you tell me what they ruled, I mean...[crosstalk]. BORK: Well, they – they – they ruled in a very strange business that you couldn’t have a rigid quota in the undergraduate school at the University of Michigan. However, they ruled that you could have preferences for minorities in their law school and it’s not the difference between college and law school; it’s the difference between a hard quota – a more rigid quote and a softer quota. And they – they approved it the softer quota, thus ignoring [unintelligible] clause and ignoring, I must say, the 1964 Civil Rights Act which says no discrimination. WATTENBERG: You - you – you talk about lifestyle socialism. BORK: Yeah. WATTENBERG: Tell me what that – – I think I got – I think I got the gist of it, but why don’t you tell me... BORK: Well socialism – socialism is a philosophy really founded on the idea of equality. It – as an economic doctrine it’s blown up both theoretically and practically. We know that socialism doesn’t work. I think it’s gonna – it may come back, nevertheless because a lot of people want it anyway. But it’s blown up. But the idea of equality and lifestyle – that is nonjudgmentalism, people do their own thing and we don’t judge them, we allow it – is what is now dominant in universities and elsewhere and on the courts so that you get, you know that you get like a couple years ago you’d get a decision saying that computer simulated child pornography is speech and therefore protected by the first amendment. You get – WATTENBERG: Well that’s not so – so unreasonable to say something coming out of your computer is – is speech. I mean you – you – you can be against pornography and rule on that – on that on that ground but the idea that it’s computer simulated and it’s coming out of your computer doesn’t seem to me to be I mean it – it – it’s speech. It’s a means of communication. BORK: Well, they also said nude dancing is – is entitled to considerable protection because it’s expressive. Now you can do that forever, you know. WATTENBERG: Right. BORK: But what the – what the speech clause was about was political speech. Not about nude dancing. WATTENBERG: Right. Let me – does – doesn’t this whole argument or even what put wheels on this – the whole case that you in the lead of a lot of it but – but many other conservative thinkers as well, isn’t what really set the time-bomb ticking was the Roe v. Wade? BORK: Well that certainly – that certainly was an explosion and that polarized the politics in this country. WATTENBERG: That – that – that was a five to four decision. Is that right? BORK: No. It was I think seven to two. White – the Chief Justice joined the majority, Burger... WATTENBERG: That abortions should be legal. BORK: Yeah and he did that I think for – for tactical reasons. If he’s in the major – there was gonna be a majority without him and if he wasn’t in the majority then the Senior Justice at the time, William O. Douglas, would assign the opinion. By joining the majority he got to assign the opinion. He assigned it to Harry Blackman I think to keep it away from William O. Douglas. But that didn’t do ’em much good because Harry Blackman wrote a – a really extraordinarily permissive abortion statute – he wrote a statute which is more permissive than any state in the union; more permissive than in any country in the western – in the – in the western civilization and in other countries it’s settled le – the legislature. The people compromise, they fight it out, they go home, say we’ll come back again next year and we’ll fight it out again. It’s not nearly the divisive issue there as it is here because here they took it out of the [crosstalk] hands of the people, they took it out of the hands of – of democracy and transferred it to the courts and as a result, the people who are pro-life feel disenfranchised, and indeed they are. WATTENBERG: Um hm. Did the – you went through this horror show of – of being not confirmed. you – you were appointed by... BORK: Nominated. WATTENBERG: Sorry. Well – you – you were nominated by... BORK: Ronald Reagan. WATTENBERG: By Ronald Reagan and turned down [unintelligible] something that reached I mean you know, stellar headline quality [?]. I – I – I just wonder , would some people watching this program say 'well, he’s just bitter, that’s why he – he you know, this is not what he was like before and he’s just sort of angry'? BORK: Well, that’s preposterous. for one thing, one a the things they held against me was an article I wrote years before. I was nominated in 1987. I wrote an article in 1971 which criticized the court and the abortion decision and all that stuff. Then long before, roughly what, sixteen years before I was nominated so it’s not bitterness. This has been my – my point of view for – for what – thirty/forty years. WATTENBERG: Let me go to one – to one a the other cases that came up recently, this Texas decision about... BORK: Lawrence against Texas? WATTENBERG: Yeah. Against homosexuality. BORK: Homosexual sodomy, yes. I would not vote for a statute making homosexual sodomy a crime. WATTENBERG: You would not. BORK: I would not. and I would... WATTENBERG: So I – I would therefore say you favor it? BORK: No, I don’t favor it. I just let people alone. However, Texas had a statute making it a crime. Now the question is whether that statute violated the constitution. WATTENBERG: No – no wait a minute, but hold it, Bob. You – you can’t go quite – quite so blithely over the – you know, I – I think just leave people alone. Because once you say just leave people alone, then – then you’re opening – [crosstalk] opening the door to this whole cultural lifestyle... BORK: No – I’m talking about in that respect. I’m talking about if somebody said, 'Would you want to pass a law against homosexual sodomy, making it criminal?' I would say, 'I don’t want to pass that law.' But the question is – is Texas did pass such a law. The question is whether that law is unconstitutional, which is a different question than whether it’s wise, or whether it’s something we ought to favor legislatively. There is nothing in the constitution that addresses that question so what the court should have done was say we have no way of judging under the constitution that statute. Go away. the same thing they should have said about abortion. They should have let – they should have let abortion be fought out in the state legislatures where it was being fought out before the court stepped in. WATTENBERG: And – and a number of big states including New York and California had already legalized [crosstalk] uh... BORK: Oh yeah. That’s right. That’s right. WATTENBERG: ...abortion BORK: But that’s the way it should be done. If it’s done at all it should be done by the people deciding on moral grounds and prudential grounds what they want the law to be. And when the court steps in and can point to nothing in the constitution that justifies them in stepping in, and then - and strikes down those statutes and writes its own statute, that you can call legal activism – judicial activism at it’s highest pitch. WATTENBERG: Now you, the subtitle of this very interesting book, it’s called Coercing Virtue and the subtitle is The Worldwide Rule of Judges. Where – where – where does the worldwide come in? BORK: Well I – actually I’m really talking about nations that have a western culture, culture of the west – western civilization. it – it clearly does not apply to the Muslim world – the world of Islam. But I’m talking about you know, the most of the western hemisphere; I’m talking about Europe; I’m talking about the near east – Israel; I’m talking about Australia, and so forth. nations that have a western culture and have adopted constitutions and who have given judges the power to enforce those constitutions. WATTENBERG: And – and you are very concerned here that lawyers making their case site foreign decisions. BORK: Well I’m not concerned [hesitate] – I’m a little surprised that – that justices would site foreign decisions because what – well, one justice said in a – in an opinion that we could – we could take guidance from it; it would be useful to look at and interpreting our constitution the rulings over the privy council of Jamaica, the Supreme Court of India and the Supreme Court of Zimbabwe where Robert Mugabe is blowing everybody up. WATTENBERG: What is the international criminal court? BORK: Well, the international criminal court is – is new and it’s designed to try crimes against humanity and crimes of aggression between nations and so forth. Now it’s a little odd. We don’t know what it’s gonna do yet, but it has a great potential for – for really terrible mischief. WATTENBERG: Have we signed onto it? BORK: No. The United States – Bill Clinton signed it, but did not submit it to the Senate for ratification. George Bush has withdrawn the signing so – but that doesn’t mean that other nations don’t claim that we’re subject to the jurisdiction of that court nonetheless. WATTENBERG: Now Canada is one of the two countries – Canada and Israel are one a the two sort of case studies that you use as to show this global tendency, yet... BORK: And the internationalization of the law. WATTENBERG: And the internationalization of the law. And – and yet I think – you – you make the point that unlike the American situation they have not used this power to go against religious symbols. BORK: Canada had not at the time I wrote the book, and so far as I know they still haven’t. Israel has. WATTENBERG: Um hm. BORK: Israel - Israel Supreme Court gives very short shrift to orthodox Jews. it’s a – it’s a it’s kind of the what they call the post-Zionist movement which is kind of Israel’s counterculture. WATTENBERG: Which justices have actually sited foreign law in – in – in their argumentation? BORK: Well, Justice Stevens, Justice Ginsberg, Justice Breyer, Justice Kennedy. WATTENBERG: There’s a whole list. What I find difficult to understand is you were saying that these court rulings are so far out of the mainstream and yet... BORK: [unintelligible] out of the mainstream; they’re so far removed from the actual constitution. I don’t care about the mainstream, I care about the constitution. WATTENBERG: Well you – I mean the implication is that you – and I think you – I don’t know whether you use the actual word 'mainstream', - is that they’re acting against the will of the people. And – and – and – and yet – I mean in the last full election we’ve had in the year 2000 it was a fifty/fifty vote in – in effect, so it’s not – I mean it’s not some wacky – wacky ideas. BORK: Yes, it is. Yes, it is Ben. I don’t – they’re not supposed to act in accordance with the will of the people. They are suppo – because a lot of the constitution puts limits. The real constitution; not the one they made up, but the real constitution puts limits on the will of the people. You cannot establish a church. You cannot ban political speech. I mean, these are limits on what the will of the people might be. And that’s fine. All I’m saying is they should stick to the – to what’s in the actual constitution and not begin making up the constitution. WATTENBERG: And – and – and – and that’s – am I wrong – were – were there not some other possibilities that you listed? BORK: Oh, I may have but I – I found none of them very – very – very much available. I don’t really at the moment foresee any way to reverse this trend. It’s – for one thing it’s the fact that it’s international suggests that it’s a lot more powerful than just the appointment of a few bad justices here and there. WATTENBERG: So – so – so you think the ... BORK: It’s the culture war. WATTENBERG: It’s the culture – it’s life – lifestyle socialism, really, that’s – that’s what you’re – that’s what you’re... BORK: Well, that’s one way of putting it. That’s right. [crosstalk] WATTENBERG: Which is – which is your problem. BORK: Well it’s not... WATTENBERG: BORK: My problem is judges behaving that way. I – I, you know, I haven’t got a – whether I approve of various aspects of lifestyle socialism is a different question and I might approve of some and disapprove of others. That’s not the point. The point is a judge has no business making up rights in order to accommodate lifestyle socialism or any other any other intellectual trend or fad. WATTENBERG: We’re still fighting the 1960s all over again, year after year. It’s that sort of –in its modern incarnation this all transpired. BORK: Well, in a way the court was ahead of the ’60s outbreaks, but the ’60s certainly intensified it and I’m afraid ’60s values are still being enforced by courts. WATTENBERG: So is – is it just in closing, in a word, is it is it fair to say that Judge Robert Bork remains a pessimist? BORK: Well, a cheerful pessimist. And it must be remembered that pessimism is not the same thing as passivity. I believe in fighting back and – and, doing everything you can to stop this trend which I regard as illegitimate. the fact that I don’t – that I think we’re probably gonna lose at least in the short term does not effect the way we ought to behave. WATTENBERG: Okay, on that note thank you very much Robert Bork for appearing with us on Think Tank. And thank you. Please remember to send us your comments via email. For Think Tank, I’m Ben Wattenberg. [END] Announcer: We at Think Tank depend on your views to make our show better, please send your questions and comments to New River Media, 1219 Connecticut Ave NW, Washington, DC 20036 or email us at thinktank@pbs.org. 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