After the Tall Timber

by Renata Adler

  In the name of “freedom,” he wants to overrule, for instance, Shelley v. Kraemer, a 1948 decision, thereby allowing states to enforce “a racially restrictive covenant.” And to overrule Skinner v. Oklahoma, a 1942 decision, and thereby uphold the right of the state to sterilize robbers. He thinks that the Supreme Court decision forbidding the poll tax was wrongly decided, since the poll tax in question was “not discriminatory” and was “very small.” And so on. There are, of course, cases about which men of good will reasonably disagree—having to do, for example, with capital punishment, with the one-man, one-vote reapportionment cases, and with the “exclusionary rule,” which forbids the state to use in criminal trials evidence that was illegally seized. Of the last, he has said in an interview that it seems to him that “the conscience of the court ought to be” at least as much “shaken by the idea of turning a criminal loose upon society” as by the idea of admitting illegally seized evidence.

  It might be worth examining by Judge Bork’s own reasoning the kind of “majoritarian” statute he would feel compelled to uphold. The only individual right that he finds in the Fourteenth Amendment, albeit “derived,” is the right to be protected from state action that enforces “racially invidious classification.” So there is nothing to prevent a majoritarian preference from being expressed, for instance, in a statute requiring everyone, of every race, to be blond. And nothing—perhaps this is more serious—to prevent the state from enforcing a majoritarian preference that all single mothers should be sterilized. Or all women with an IQ below 130. Or all mothers under eighteen.

  Bork has repeatedly called Roe v. Wade, the 1973 decision recognizing the right to abortion, “an unconstitutional decision,” a “judicial usurpation of state legislative authority.” This has a different significance altogether from calling it a mere mistake, which arguments for the continuity and predictability of the Court’s decisions could leave undisturbed. If it is “an unconstitutional decision” and a “judicial usurpation,” then Justice Bork would be obliged by his constitutional oath not to reaffirm it. And overruling Roe v. Wade would permit the recriminalization of abortion by the states.

  On the other hand, since there is no right of privacy in the matter, one way or the other, there is nothing to prevent a state from imposing abortions, as long as that imposition is expressed in a “racially neutral” law.

  Bork would doubtless reply that no such statutes could be passed anywhere in this country, and that we should have more faith in “majoritarian” “preferences” than that. But there have been totalitarian states in this century, as “majoritarian” as any in history, which have passed very extreme statutes of that order. For that matter, for decades in the South there were statutes of a related kind.

  In a simultaneously impassioned and derisive article published in The New Republic of August 31, 1963, Bork left no doubt of where he stood. What he opposed at the time was “legislation by which the morals of the majority are self-righteously imposed upon a minority.” He also said, “The simple argument from morality to law can be a dangerous non-sequitur.” He was not writing about Griswold, or Roe v. Wade. The dangerous “majority” in this instance included, among many other individuals and institutions, Congress, then about to pass the Interstate Public Accommodations Act, which became Title II of the Civil Rights Act of 1964.

  Bork was so exercised at the prospect of this majoritarian “mob coercing and disturbing other private individuals”—the “mob” presumably composed of Rosa Parks, religious elderly people, schoolchildren, sedate college students at lunch counters, and perhaps even those brave, mostly Republican judges of the Fifth Circuit, Elbert Tuttle, John Minor Wisdom, Richard Rives, John Brown, and others who supported them—that he referred no fewer than four times to the impact of the proposed law on barbers, though barbers were explicitly excluded, in public hearings before Congress, from enterprises covered by the act. Although he warned of “the danger of violence,” he gave no indication that he knew which side the violence was on, or was aware that the “private individuals” he described as being “coerced” were really mobs armed with baseball bats and ax handles, and troopers with dogs, clubs, and water hoses, and that though there was “violence”—bombings, beatings, shootings—not one incident of that kind, in all the years of the desegregating transformation of the South, was perpetrated by the people whose conduct he so deplored.

  In as recent a case as Dronenburg v. Zech, 1984, Judge Bork repeated many of the views he had expressed in The New Republic in 1963 and the Indiana Law Journal in 1971. Dronenburg was a case that should have been—and, in a sense, was—decided in a single paragraph, to the effect that there was ample precedent for upholding a policy that permitted the military to discharge an officer for homosexuality. But Judge Bork, speaking for the Court, used the occasion to write one of what have become known as his Ed Opinions, or Ed Notes, or Letters to Attorney General Meese—in effect, job applications, reiterations of commitments he had made concerning what he would do as a member of the Supreme Court.

  “The principle of such legislation,” Bork once wrote, “is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths. That is itself a principle of unsurpassed ugliness.” These lines were not part of any opinion having to do with privacy, say, or abortion, or censorship, or freedom of speech. They were written to describe the desegregation provisions embodied in Title II. The “principle of unsurpassed ugliness” that so exercised him was desegregration.

  For at least the past thirty years, no American institution has served us better than the federal courts. For almost twenty-five years, Bork has staked his career on repudiating and denouncing the decisions of those courts. He has expressed his views so forcefully, and for so long, that he has become the nominee because of them. A senator faithful to his own constitutional oath cannot lightly or blandly vote to confirm the nomination unless he is prepared to endorse those views.

  The New Yorker

  August 3, 1987

  Originally titled “Notes and Comment” in The Talk of the Town

  CANARIES IN THE MINESHAFT

  INTRODUCTION

  ALONG with every other viewer of television during Operation Desert Storm, the Gulf War of 1991, I believed that I saw, time after time, American Patriot missiles knocking Iraqi Scuds out of the sky. Every major television reporter obviously shared this belief, along with a certainty that these Patriots were offering protection to the population of Israel—which the Desert Storm alliance, for political reasons, had kept from active participation in the war. Commentators actually cheered, with exclamations like “Bull’s-eye! No more Scud!” at each such interception by a Patriot of a Scud. Weeks earlier, I had read newspaper accounts of testimony before a committee of the Congress by a tearful young woman who claimed to have witnessed Iraqi soldiers enter Kuwaiti hospitals, take babies out of their incubators, hurl the newborns to the floor, and steal the incubators. I believed this, too.

  Only much later did I learn that hardly a single Patriot effectively hit a single Scud. The scenes on television were in fact repetitions of images from one film, made by the Pentagon in order to persuade Congress to allocate more money to the Patriot, an almost thirty-year-old weapon designed, in any case, not to destroy missiles but to intercept airplanes. In his exuberance, a high military official announced that Patriots had even managed to destroy “eighty-one Scud launchers”—interesting not only because the total number of Scud launchers previously ascribed to Iraq was fifty, but also because there is and was no such thing as a “Scud launcher.” The vehicles in question were old trucks, which had broken down.

  What was at issue, in other words, was not even pro-American propaganda, which could be justified in time of war. It was domestic advertising for a product—not just harmlessly deceptive advertising, either. The Patriots, as it turned out, did more damage to the
allied forces, and to Israel, than if they had not been used at all. The weeping young woman who had testified about the incubator thefts turned out to be the fifteen-year-old daughter of the Kuwaiti ambassador to Washington; she had not, obviously, witnessed any such event. Whatever else the Iraqi invaders and occupiers may have done, this particular incident was a fabrication—invented by an American public relations firm in the employ of the Kuwaiti government.

  During Operation Desert Storm itself, the American press corps, as it also turns out, accepted an arrangement with the U.S. military, whereby only a “pool” of journalists would be permitted to cover the war directly. That pool went wherever the American military press officer chose to take it. Nowhere near the front, if there was a front. Somehow, the pool and its military press guides often got lost. When other reporters, trying to get independent information, set out on their own, members of the pool actually berated them for jeopardizing the entire news-gathering arrangement.

  It would have been difficult to learn all this, or any of it, from the press. I learned it from a very carefully researched and documented book, Second Front: Censorship and Propaganda in the Gulf War, by John R. MacArthur. The book, published in 1992, was well enough reviewed. But it was neither prominently reviewed nor treated as “news” or even information. A review, after all, is regarded only as a cultural and not a real—least of all a journalistic—event. It was not surprising that the Pentagon, after its experience in Vietnam, should want to keep the press at the greatest possible distance from any war. It was not surprising, either, that reporters, having after all not that much choice, should submit so readily to being confined to a pool, or even that reporters in that pool should resent any competitor who tried to work outside it. This is the position of a favored collaborator in any bureaucratic and coercive enterprise.

  What was, if not surprising, a disturbing matter, and a symptom of what was to come, was this: The press did not report the utter failure of the Patriot, nor did it report the degree to which the press itself, and then its audience and readership, had been misled. This is not to suggest that the press, out of patriotism or for any other reason, printed propaganda to serve the purposes of the government—or even that it would be unworthy to do so. But millions of Americans surely still believe that Patriots destroyed the Scuds, and in the process saved, or at least defended, Israel. There seemed, in this instance, no reason why the press, any more than any person or other institution, should be eager to report failures of its own.

  Almost all the pieces in this book have to do, in one way or another, with what I regard as misrepresentation, coercion, and abuse of public process, and, to a degree, the journalist’s role in it. At the time of the Vietnam War, it could be argued that the press had become too reflexively adversarial and skeptical of the policies of government. Now I believe the reverse is true. All bureaucracies have certain interests in common: self-perpetuation, ritual, dogma, a reluctance to take responsibility for their actions, a determination to eradicate dissent, a commitment to a notion of infallibility. As I write this, the Supreme Court has, in spite of eloquent and highly principled dissents, so far and so cynically exceeded any conceivable exercise of its constitutional powers as to choose, by one vote, its own preferred candidate for President. Some reporters, notably Linda Greenhouse of The New York Times, have written intelligently and admirably about this. For the most part, however, the press itself has become a bureaucracy, quasi-governmental, and, far from calling attention to the collapse of public process, in particular to prosecutorial abuses, it has become an instrument of intimidation, an instrumentality even of the police function of the state.

  Let us begin by acknowledging that, in our public life, this has been a period of unaccountable bitterness and absurdity. To begin with the attempts to impeach President Clinton. There is no question that the two sets of allegations, regarding Paula Jones and regarding Whitewater, with which the process began could not, as a matter of fact or law or for any other reason, constitute grounds for impeachment. Whatever they were, they preceded his presidency, and no President can be impeached for his prior acts. That was that. Then the Supreme Court, in what was certainly one of the silliest decisions in its history, ruled that the civil lawsuit by Paula Jones could proceed without delay because, in spite of the acknowledged importance of the President’s office, it appeared “highly unlikely to occupy any substantial amount of his time.” In 1994 a Special Prosecutor (for some reason, this office is still called the Independent Counsel) was appointed to investigate Whitewater—a press-generated inquiry, which could not possibly be material for a Special Prosecutor, no matter how defined, since it had nothing whatever to do with presidential conduct. Nonetheless, the first Special Prosecutor, Robert Fiske, investigated and found nothing. A three-judge panel, appointed, under the Independent Counsel statute, by Chief Justice William Rehnquist, fired Fiske. As head of the three-judge panel, Rehnquist had passed over several more senior judges, to choose Judge David Bryan Sentelle.

  Judge Sentelle consulted at lunch with two ultra-right-wing senators from his own home state of North Carolina: Lauch Faircloth, who was convinced, among other things, that Vincent Foster, a White House counsel, had been murdered; and Jesse Helms, whose beliefs and powers would not be described by anyone as moderate. Judge Sentelle appointed as Fiske’s successor Kenneth W. Starr. North Carolina is, of course, a tobacco-growing state. Kenneth Starr had been, and remained virtually throughout his tenure as Special Prosecutor, a major, and very highly paid, attorney for the tobacco companies. He had also once drafted a pro bono amicus brief on behalf of Paula Jones.

  The Office of Special Prosecutor—true conservatives said this from the first—had always been a constitutional abomination. To begin with, it impermissibly straddled the three branches of government. If President Nixon had not been in dire straits, he would never have permitted such an office, in the person of Archibald Cox, to exist. If President Clinton had not been sure of his innocence and—far more dangerously—overly certain of his charm, he would never have consented to such an appointment.

  The press, however, loves Special Prosecutors. They can generate stories for each other. That something did not happen is not a story. That something does not matter is not a story. That an anecdote or an accusation is unfounded is not a story. There is this further commonality of interest. Leaks, anonymous sources, informers, agents, rumormongers, appear to offer stories—and possibilities for offers, pressures, threats, rewards. The journalist’s exchange of an attractive portrayal for a good story. There we are. The reporter and the prosecutor (the Special Prosecutor, that is; not as often the genuine prosecutor) are in each other’s pockets.

  Starr did not find anything, either. Certainly no crime. He sent his staff to Little Rock, generated enormous legal expenses for people interviewed there, threw one unobliging witness (Susan McDougal) into jail for well over a year, indicted others (Webster Hubbell, for example) for offenses unrelated to the Clintons, convicted and jailed witnesses in hopes of getting testimony damaging to President Clinton, tried, after the release of those witnesses, to jail them again to get such testimony. Still no crime. So his people tried to generate one. This is not unusual behavior on the part of prosecutors going after hardened criminals: stings, indictments of racketeers and murderers for income tax offenses. But here was something new. Starr’s staff, for a time, counted heavily on sexual embarrassment: philandering, Monica Lewinsky. They even had a source, Linda Tripp. Ms. Tripp had testified for Special Prosecutor Fiske and later for Starr. She had testified in response to questions from her sympathetic interlocutor Senator Lauch Faircloth before Senator D’Amato’s Whitewater Committee. She had testified to agents of the FBI right in the Special Prosecutor’s office at least as early as April 12, 1994. An ultra-right-wing Republican herself, she not only believed White House Counsel Vincent Foster was murdered, she claimed to fear for her own life. She somehow had on the wall above her desk at the Pentagon, where her desk adjoined M
onica Lewinsky’s, huge posters of President Clinton—which, perhaps not utterly surprisingly, drew Ms. Lewinsky’s attention. Somehow, in the fall of 1996 Ms. Tripp found herself eliciting, and taping, confidences from Ms. Lewinsky. In January of 1997, Ms. Tripp—who by her own account had previously abetted another White House volunteer, Kathleen Willey, in making sexual overtures to President Clinton—counseled Ms. Lewinsky to try again to visit President Clinton. By the end of February 1997, Ms. Lewinsky, who had not seen the President in more than eleven months, managed to arrange such a visit. Somehow, that visit was the only one in which she persuaded the President to ejaculate. Somehow, adept as Ms. Lewinsky claimed to be at fellatio, semen found its way onto her dress. Somehow, Ms. Tripp persuaded Ms. Lewinsky, who perhaps did not require much persuasion, to save that dress. Somehow, the Special Prosecutor got the dress. And somehow (absurdity of absurdities), there was the spectacle of the Special Prosecutor’s agents taking blood from the President to match the DNA on a dress.