At this writing, the opposition to Judge Robert Bork’s nomination for the Supreme Court is nearing decisive proportions in the U.S. Senate. Around the country, the momentum against Bork is still building, as more constituencies find out about this man’s philosophy on behalf of the powerful and rich.
When it comes to small business, victimized by giant corporations and conglomerates, Judge Bork interprets the antitrust laws as reeds, not rods to block monopolistic practices. For instance, discount stores selling you products at lower prices are worried about Judge Bork’s belief that it is alright for manufacturers to fix the price that retailers sell their products to consumers. The Supreme Court has granted review in an important resale price maintenance case, so the question of what you’ll be paying for clothing, appliances, furniture and other items is before the judges. If Judge Bork becomes Justice Bork, watch out!
His economic philosophy tends strongly toward letting any merger, any restrictive tying agreement, any consolidation go into effect, until there are only two companies left in the industry or business. This really has shaken up the thousands of independent gasoline service stations whose trade association in Washington is working against Bork. They do not want the giant oil companies to drive them out of business.
National environmental groups have declared their worries about Bork in clear terms. The Audubon Society, the Sierra Club, the Natural Resources Defense Council and others agree that groups or individuals challenging government or environmental issues will be unlikely to get through Judge Bork’s courtroom doors.
He has a very restrictive view of which Americans “have standing to sue.” In one opinion, he opposed motorists having “standing to sue” the Environmental Protection Agency regarding its criteria for vehicle fuel efficiency. Only auto companies would have standing, he asserted.
The Judge is a door slammer to the federal courts. He wrote, in an address before a Pound Foundation conference in 1977, that the federal courts should not be bothered by personal injury lawsuits. He would establish “a new set of tribunals” to handle cases under the environmental laws, occupational safety laws and conflicts under federal welfare statutes. These cases present trivial legal issues, in Bork’s view, and should not take up the time of federal judges. Presently, asbestos cases and product defect and toxic chemical cases are in the federal courts.
Although the drive against Jude Bork’s nomination is mostly nourished by his alarming denunciations of past Supreme Court opinions advancing free speech, women’s and minorities’ rights and privacy of the American people, the big cases coming to the Supreme Court in the next few years will include conflicts between property rights and individual rights.
Law Professor Richard A. Epstein, a friend and ideological colleague of Judge Bork, noted, in a recent article, that important matters as “land use control, rent control and retroactive economic legislation,” will be heading toward the Supreme Court. Judge Bork’s judicial penchant for favoring government against individuals, business against consumers and big business against government will not be reassuring, should he write the opinions in such cases.
During his Senate testimony, Bork declared that “in a classroom nobody gets hurt, in a courtroom someone always get hurt.” He rendered those words to satisfy doubting Senators that his professional views at Yale would not be his views as a judge in several areas. Yet Bork’s unrecanted positions on access to the courts, on favoring government secrecy and on weakening the pro-competition laws of the land, through his radical interpretation of their purposes, would leave a legion of hurt people staggering out of his courtroom, assuming that is, they were ever allowed inside to plead their case.
It is a reflection of Ronald Reagan’s inability to read the values of Americans that such an extremist and offensive nomination was sent to the Senate in the first place. Reagan called Bork brilliant. Given the judge’s atavistic positions, more suited to the early years of this century, he can be more charitably described as a slow learner.