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By
Maurine Jensen Proctor
Photographs
by Scot Facer Proctor
The Massachusetts
Supreme Judicial Court ruled on Tuesday that the state cannot deny
gay couples the right to marry, which flies in the face of the gay
marriage initiative defeated just last year by that state’s legislature.
Once again the courts have snatched the voice of the people, overriding
it for their own version of social progress. Judge Robert H. Bork,
a pivotal figure in the culture war , says our nation is being radically
altered by activist judges who are using their courts as a tool
for elites who want to impose their favored values on society.
Judge Bork,
in books like Slouching Toward Gomorrah and the new
Coercing Virtue
paints a worried picture of an eroding American society. Formerly
a circuit judge for the U.S. Court of Appeals for the
District of Columbia Circuit, in 1987 he was nominated by President
Reagan to the U.S. Supreme Court. After a concerted
smear campaign by special interest groups, his nomination was not
confirmed and a new word entered our language. To “bork” someone
is to launch a relentless and systematic attack on a candidate or
nominee, especially through the media. Social conservatives regard
Robert Bork as an eloquent spokesman in a decaying world.
For more
insight into Judge Bork’s views and recent book, watch for the
Meridian article “The Imperial Judiciary: Robert Bork’s New Book
Coercing Virtue.”
Q. In
your recent book you describe a judiciary that has taken on enormous
power and systemtically overturns the voice of the people. Judges
have become the agents of cultural change—what many of us would
call cultural decay. Are there no checks and balances upon them?
Did the Founding Fathers create a flaw in the system that would
allow a runaway judiciary to become unelected legislators?
A. There is a flaw. The Founders had no idea of what a court
could become. The courts they knew were modest in their ambitions
and in what they ruled on. They did not forsee a court that assumed
the power to make law. For that reason they didn’t provide any
significant checks and balances with respect to the judiciary.
Nobody has the means of checking the judiciary.
Overlay this
activist court with a culture that is increasingly permissive and
doesn’t like to make moral judgments, and you get a picture of where
we are going as a society. The court becomes a crucial part of
the development of a culture of radical individualism where nobody
has the right to criticize anything based on morality.
Q. What
does judicial activism mean?
A. The
term is bandied about so indiscriminately that it requires definition.
Judges engage in activism when their decisions cannot plausibly
be related to the constitution they claim to enforce. Such imperialism
is now characteristic of most Western nations. That suggests the
problem is not due simly to some unfortunate appointments to the
Supreme Court. It is inherent in men and women given power without
democratic accountability.
These elites
press upon the rest of us on the lower slopes of Olympia their attitudes
and musings about the nature of society.
Q. What
can people do about this? Are we just to sit back and watch while
the courts restructure our world?
A. People
do resist some of the things that are taking place. They pass laws,
for instance, against pornography, and the court wipes those out.
One thing that could be done is to get judges that understand the
judicial role, which is much more modest than their current behavior
would suggest. Getting those judges is very difficult. You would
have to win elections and control the Presidency and the Senate.
The parties
are splitting along the cultural divide and the Democratic party
in the Senate wants judges that will enact the liberal agenda regardless
of what’s in the Constitution. The Republicans have not been as
aggressive in defending the President’s nominees as I would like.
I don’t know if we have the strength of will to win those battles
over the judiciary. Beyond that, you can’t be sure what will happen
to people once they become judges. Their opinions change. President
Reagan might have been very surprised by the opinions of Sandra
Day O-Connor.
Q. We
received a letter from a reader who said she had worked hard to
pass Proposition 22 in California defining marriage as between a
man and a woman and wondered, if a court could undo all her effort,
was it worth it? When judges snatch the voice from the people by
negating their laws, does this sap the will of the people? Does
it teach them that they are powerless to govern themselves?
A. One
of the horrible things about the abortion decision is that it came
from the judiciary. In all other western nations, it is a legislative
decision. Our court has taken it away from the people—including
the horror called partial-birth abortion.
The court is
on the verge, unless popular outrage leads it to a more temperate
position, of legalizing same-sex marriage. I don’t see how people
who hold the rationale displayed in the Lawrence v. Texas decision,
striking sodomy laws, could stop short of homosexual marriage.
The only hope I see there is this proposed federal marriage amendment.
That will be resisted furiously by Democrats, not necessarily the
rank-and-file Democrats, but the Congressional Democrats, but some
of them will support it. It takes a 2/3 majority of Congress and
3/4 of the states to ratify it. I don’t know what else to do.
If homosexual marriage becomes a right, we will have destroyed any
distinctions between heterosexuality and homosexuality. It you
remove all moral stigma from homosexual behavior, you are going
to get more homosexuals.
The predisposition
of people toward homosexuality lies in a spectrum. Some people in
their formative stage can be lured into that life, and that’s too
bad because it is a miserable life. We ought to talk about the
impact homosexuality has on a person’s psychology instead of always
talking about other things. The rates of psychic illness and the
rates of attempted suicide are 3 or 4 times as high among homosexuals.
The usual response to these facts is that it is because they are
discriminated against. However, in countries like the Netherlands
and New Zealand where same-sex marriage is allowed, these disparities
in mental health still exist.
Then there is
the question of disease which is rampant among homosexuals. We
owe it to young people to preserve them from entering into that
lifestyle, and the only way to do that is to preserve a difference
between hetero and homosexuality.
Marriage would
be completely demeaned by allowing homosexual marriage. Why is
it anything special if people can just sign up for it based on sexual
activity? Homosexual relationships are not usually characterized
by fidelity. The rate of promiscuity among them is much higher.
Heterosexuals bear a lot of the blame for what has happened to marriage.
Admitting that does not mean we should go the extra step and destroy
it altogether.
Q. What
can people do as they watch their world make this drastic social
shift?
A. In this individual
case, you can do something by working to pass a marriage amendment.
But you cannot amend the Constitution every time there is another
outrage.
Still, the public
must be alerted that their culture is being systematically subverted
by a permissive, individualistic, non-judgmental world-view driven
in the courts. Now you can show oral sex on cable television, you
can show computer-simulated child pornography. It is not just an
isolated bad decision coming from the courts to drive this viewpoint,
but a systematic progression. Any attempt to get people to vote
for a candidate based on what kind of judges they would vote on
has been futile to this point.
Q. Why
has this liberal philosophy flourished while conservatives seem
asleep at the wheel?
Liberals are
more aggressive, but in addition to that, conservatives do not control
the primary means of education. Liberals control the universities.
They award professorships. They control the news media, who are
uniformly left. People denounce Fox News as terribly opinionated.
It is hated not because it is conservative, but because it is not
liberal, and that is enough to get it denounced.
Liberals control media, radio, television, many church bureaucracies
, many clergymen, museum staffs, foundation staffs, and Hollywood.
These outlets of education are all far to the left and, of course,
they have the rewards to give to young people Who wants to be a
professor in Christiandom if you could be a professor at an Ivy
League school?
Q. Is
there a way to reverse this so that social conservatives have more
influence?.
A. I
have no idea. If I knew, I would be out there explaining how to
do it. Irving Kristol said, “There is no culture war. There used
to be, but the other side won.” Kafka said, “There is hope, but
not for us.” T.S. Eliot said, “For us there is only the trying.
The rest is not our business.” Of course it is our business, that’s
why we try. You do battle wherever you can do battle, and there’s
no point in giving up.
Q. Where
does the cultural war find its worse expression?
A. Antipathy toward religion. The biggest divide between so-called
intellectuals and everybody else is on religion. They are indifferent to or very hostile toward religions.
It is perfectly clear and has been spelled out in Philip Hamburger’s
book Separation of Church and State. There is no possible
ground for this wall of separation, but the court moves ahead obliterating
religion from the public square.. Religion accounts for civility
and self-restraint in our society, which is vanishing as religion
has been marginalized and pushed to the sidelines of the debate.
The Supeme Court has played a large role in doing this.
Q. If the
courts are taking a legislative role and trampling something as
important to most people as religion, why, as the polls show, do
they generally hold the Supreme Court in such high esteem?
A. They
think the Court decides according to principle while legislators
operate out of expedience.They don’t understand the courts or the
nature of what is happening..
Q. Is
it possible to help people understand that as the courts go, the
culture goes? That they need to pay attention to what kind of judges
their candidates support?
A. To
this point people just haven’t turned out in elections over the
issue of judges. I don’t know if the people are ever going to be
educated enough to realize that they are being ruled by liberal
judges. They say that they are speaking in the name of the Constitution
and it is a revered document, so people believe it must be so. Even
conservatives, if they like something, think it must be in the Constitution.
I got in a bitter debate with some conservatives who felt that a
ban on abortion must be in the Constitution. Whatever you feel
about abortion, it is not in the Constitution. It has nothing to
say on the subject. Conservatives often share the sins of the liberals,
it is just that they are losing.
Q. Why do
the Supreme Court justices feel free to interpret the Constitution
in ways that the Founding Fathers could never have intended?
A. Legal
scholars and the justices say that our understanding as a society
has evolved. They also play games where they look at the Constitution
and see new rights that no one else before them has ever seen.
Justice William Brennan looked at the Bill of Rights and said it
was about human dignity, and there went the death penalty which
he didn’t find dignified. The Justices have come to view themselves
as philosopher kings or Olympians, discharging a new vision for
the country.
Q. You say
that too many activist judges are seeking to thrust the views of
the intellectual elite on the rest of us. Who are these people?
A. The world-view has a shape. It is utopian. They have a version
of virtue they want to cast upon us. This class, the intellectual
elite, are not distinguished by any particular intellectual ability.
Hollywood’s Barbra Streisand nor news media’s Peter Jennings are
particularly known for their intellectual accomplishment, but they
believe they have the vision for how things should be and they are
going to shove it down the throat of the rest of us.
One time I was
debating at the University of Michigan and said the Supreme Court
had gone too far in removing certain decisions from local communities.
A man from the ACLU got up and called me a fascist. So it had come
to this. Letting the people vote is fascism, but having a judge
make their laws for them is democracy?
Q. So they
consider the rest of us a bunch of hapless rubes waiting to be enlightened
and reshaped by them? What can we do?
A. I
don’t know if it can be turned around, but I intend to cause as
much pain as I can on the way out.
Q. You are
also troubled because more and more often the Supreme Court is quoting
international law as a precedent in making their decisions instead
of just sticking to what our Constitution says.
A. Justice Breyer recently quoted from the Supreme Court of
Zimbabwe. The justices are now so involved with talking to foreign
judges that they are coming to see themselves as involved in a global
constitutional conversation. Ginsburg recently quoted a resolution
in Europe. None of the justices is sticking to the documents that
they have. What an African decision has to do with the meaning
of our Constitution, I don’t know. Since they have departed from
our Constitution and are making stuff up, they have joined in the
culture war. They are enacting the left liberal agenda instead
of sticking to their own documents.
I haven’t got
a solution. One can’t foretell the future, but something has to
change.
People who insist
on sticking to the Constituion are labeled as right-wing idealogues.
I was trying
to decide on the title for my next book and I’m going to reject
the one I had in mind: The New Dark Age.
People don’t
understand. If a candidate for office puts the liberal agenda on
his platform he loses. So those who want to reshape America have
gone to the court. If the court states a ruling, the people roll
over. America is not as feisty as we think we are. We’re passive.
---
For more
insight into Judge Bork’s views and recent book, watch for the Meridian
article “The Imperial Judiciary: Robert Bork’s New Book Coercing
Virtue.”
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