Roger’s Rules

Greenhouse gas

The good news: Linda Greenhouse, who has been reporting on the Supreme Court for The New York Times for 180 years (more or less) is finally putting out to pasture and will be misinforming a smaller, though no less self-satisfied audience, at the Yale Law School.

The bad news: she marks her departure with a long, emetic essay in the paper’s Week in Review.

There is a lot that could be said about this apopemtic exercise in liberal self-congratulation. I’ll confine myself here to what Greenhouse has to say about the battle over Robert H. Bork’s nomination to the Supreme Court in 1987. She allows that Judge Bork is “an urbane and witty man” who “bore little resemblance” to the malevolent demon conjured up by his enemies. But–pay attention now: here comes a good lesson in how The New York Times subtly twists the facts–Greenhouse speaks not of malicious misrepresentation but of the “instant portrait painted by his opponents,” a characterization fails utterly–and fails deliberately–to capture the furious calumny that liberals heaped upon Bork. She quotes Ted Kennedy’s infamous “In Robert Bork’s America,” tirade–“In Robert Bork’s America,” quoth Kennedy, “there is no room at the inn for blacks and no place in the Constitution for women”–but she fails to note that what Kennedy said was simply not true–that Kennedy was, in fact, deliberately lying for political gain.

Greenhouse seems surprised that, as the hearings went on and Bork was subjected to ever more surreal attacks on his character and misrepresentations of his opinions, his “sense of humor failed him.” It would be instructive to see how Linda Greenhouse’s sense of humor fared should she be exposed to a tenth of the virulent abuse Bork weathered.

The most repellent part of Greenhouse’s essay, however, came in her summary of the significance of the battle over Bork’s nomination. Bork and his supporters, she writes, “emerged from defeat filled with bitterness,” where she, a repository of forward-looking enlightenment,

thought then and think[s] now that the debate had been both fair and profound. In five days on the witness stand, Judge Bork had a chance to explain himself fully, to describe and defend his view that the Constitution’s text and the intent of its 18th-century framers provided the only legitimate tools for constitutional interpretation. Through televised hearings that engaged the public to a rare degree, the debate became a national referendum on the modern course of constitutional law. Judge Bork’s constitutional vision, anchored in the past, was tested and found wanting, in contrast to the later declaration by Judge Anthony M. Kennedy, the successful nominee, that the Constitution’s framers had “made a covenant with the future.”

On the contrary, Bork’s view was not “tested and found wanting”: it was caricatured, distorted, and pilloried even as Bork himself was subjected to unprecedented public abuse by moral pygmies like Senator “Chappaquiddick” Kennedy. And as for the other Kennedy–Justice Kennedy who ascended to the spot Robert Bork ought to have occupied–his view of the Constitution as a “covenant with the future” is better described as a “covenant with fatuousness.” Consider, for example, the infamous “mystery passage,” which Kennedy wheels out whenever a non-existent Constitutional right needs a bit of new-age rhetoric to be made palatable:

These matters [abortion in 1992, sodomy in 2003], involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.

As Bork remarked about this passage, it is

not an argument but a Sixties oration. It has no discernible intellectual content; it does not even tell us why the right to define one’s own concept of “meaning” includes a right to abortion or homosexual sodomy but not a right to incest, prostitution, embezzlement, or anything else a person might regard as central to his dignity and autonomy. Nor are we informed of how we are to know what other rights will one day emerge from some person’s concept of the universe.

Greenhouse ends her essay with to reflection that the Supreme Court “reflects us.” Indeed it does. But what does that tell us? Greenhouse thinks that although “we may not have the Supreme Court we want” or even “the court we need,” we nonetheless “most likely” have “the Supreme Court we deserve.” Does she really think so?