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What, Me Worry?

August 29, 2005 11:46 AM

Having read Steve�s broadside against the People for the American Way, I braced myself for the worst when I read over the detailed report that PFAW prepared against Roberts. After all, Steve compared it to the famous Ted Kennedy speech that began with the words, �In Robert Bork�s America,� so I expected to find some zingers in it that would remind me of the �rogue cops,� and �segregated luncheon counters� of yore. But this PFAW report is, quite frankly, something of a bore. The relentless and routine conclusion that Roberts is against all the rights and liberties that we hold dear lacks any nuance that would make it credible. Quite the opposite, it reads more like an effort to rally the dwindling faithful to a cause that looks as though it is doomed to failure.

Why? It is important to remember the issues that brought Bork down, apart from questions of demeanor and appearance. It was his spirited (indeed intemperate) language against Title II of the Civil Rights Act on public accommodation; it was the firing of Archibald Cox as special prosecutor; it was his public attack on Griswold; and, in a last place, it was his statement that the First Amendment only covered political speech in his Indiana Law Journal article.

Roberts has not performed any public acts that would bring attention to him; and his own private views, whatever they may be, do not get the same traction as public statements, which signal to the world how committed you are to a particular position. The work done as a lawyer, for a client, in an office context gets discounted down radically as it should. The scattershot approach of the PFAW memo makes it a less than compelling document. I think that it is designed to raise funds from the faithful. I don�t see it as dominating public debate.

The second point that comes through loud and clear from the PFAW�s position paper is its utter dogmatism. It tells us what the right positions are, but it does not explain why they are right. Nor does it give us any sense of what the wrong arguments are. Yet everyone knows that all government programs are capable of excess, so that some line-drawing or qualification is required to be credible. But to introduce the type of ambiguity that raises credibility is to lose the strong focus. I don�t see any real way around this. The problem that PFAW has is that it has a weak case because Roberts is not a candidate who polarizes like Bork did. I don�t think that it is necessary to trouble ourselves, or anyone else, with it further.




Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.