PERSPECTIVES

The Michigan Daily

Friday, July 17, 1987

Page 7

Bork is right choice for Supreme Court

By David Katz
In their recent editorial ("Cork
Bork"), the-Daily's editorial staff
did an excellent job of summarizing
all the arguments in favor o f
rejecting Judge Robert Bork's
Supreme Court nomination which
we have seen in the electronic and
print media in the past week.
Because it is highly unlikely that
many of the Daily's readers will
have the opportunity to read the
arguments in favor of not rejecting
Judge Bork's nomination in either
the Daily or in most of the nation's
major tabloids, I shall attempt to do
so on the Daily's Perspectives
page.
Instead of attempting to label
Judge Bork with such popular
cliches as a "strict constructionist"
or a "conservative ideologue" or an
"original intentor," I will briefly
summarize his judicial philosophy
based on judicial opinions and
journal articles he has written.
Judge Bork believes that legislators
and not judges should make laws.
This premise is by no means
extremist. In fact, it sounds like

democracy. The idea that questions
of social policy should be decided
by the Congress, the state legis-
latures, and the electorate instead of
by the decree of eight men and one
woman speaks to the question of
how a case should be decided instead
of what the outcome of a case
should be. When applying this
reasoning to an issue such as
abortion, Bork would most likely
rule that abortions fall into the
category of those things which
should be decided by the state
legislatures. Bork does not believe
that the right to privacy or to have
an abortion is contained in the
Constitution. However, Bork would
also reject the premise that the right
to have an abortion in uncon-
stitutional because he could not find
such a right (to life) in the
Constitution. He expressed his
feelings on this issue quite
eloquently when he said that, "I am
not now arguing that any of the
privacy cases were wrongly decided.
My point is simply that the level
of abstraction chosen makes a
generalized right of privacy unpre-
dictable in its application."

On the issue of affirmative act-
ion, Judge Bork has consistently
maintained that this policy conflicts
with the provisions of the Civil
Rights Act of 1964 which bars all
types of discrimination. However,
the corollary to this belief is that he
would uphold such a policy if the
Congress would exercise its legis-
lative power by amending the Civil
Rights Act and thereby eliminating
the conflict.
Those that disagree with Bork's
judicial philosophy contend that the
Constitution must protect the
rights of the minority from the
tyranny of the majority and that the
Constitution is a "living" docu-
ment. Both of these assertions are
correct. The Constitution is a
"living" document because it is
amendable. The framers provided a
way for the legislative branch,
acting as the representatives of the
electorate, to change the Consti-
tution as the times changed. In the
past, the amendment process has
been used as a defensive measure
against conservative judicial activ-
ism of the Court. Judge Bork is a
firm believer in protecting the

rights of the minority, but those
rights must be specified in the
Constitution (i. e. free speech, a
fair trial, etc.). If a right is not
specified in the Constitution, then
it is the responsibility of the
people, through their legislatures,
not five out of nine justices, to add
that list of rights protected in the
Constitution, and it is the respon-
sibility of the Court to protect
those newly-added rights.
Regarding the confirmation
process, I agree with the Daily that
the 1968 filibuster against Abe
Fortas' nomination was wrong and
that Fortas would have made a fine
Chief Justice. But two wrongs do
not make a right, and a filibuster
against Bork's nomination would
be just as unjustified.
Finally, I would like to address
Judge Bork's role in the Saturday
Night Massacre when he fired
Special Prosecutor Archibald Cox.
While the Daily correctly stated that
this should be used as a criterion
when confirming Judge Bork's
nomination, they neglected to
mention that the members of the
Senate were aware of this event

when, in 1982, they confirmed the
nomination of Bork to the District
of Columbia Circuit Court of
Appeals by an overwhelming
majority. Some may argue that,
because of the gravity of a Supreme
Court nomination, the Senate
should reexamine Judge Bork in a
new light. Unfortunately, this
argument does not hold water. The,
majority of the cases involving
constitutional questions are not
heard by the Supreme Court.
Therefore, the final decision in
most cases will be given by an
appellate court, and Judge Bork will
be able to rule on many cases in
which his decision will be final.
The Senate was well aware of this
fact when they confirmed him. I
would hope that those senators who
voted to confirm Bork in 1982 will
approach his current nomination
with the same consistency that they
hope the post-Powell Court will
use when it hears cases on which
previous Courts have already ruled.
Katz is Publisher of the Michigan
Review.

Black man gets harrassed; white man Goetz off

By Mark Williams
The idea that America is a color-
blind society is heard more and
more these days. From the declar-
ations of the federal government to
certain academic journals and
writings, this notion is promoted.
It is a good notion - one that puts
the most faith in the humaneness of
people. It is an idealistic notion
that embodies much of what could
be called the American cried. It is
also an unrealistic notion, for it
ignores the realities of everyday life
for a significant portion of U.S.
citizens. Two recent incidents
demonstrate this point.
The aquittal of Bernard Goetz
demonstrates that given certain cir-
cumstances, even open of confess-
ions to crimes can be overlooked.
Video tapes of Goetz made while
he was in police custody, showed
Goetz confessing to the shooting of
four youths on a New York subway
car. The confession was frank, and
brutally honest. Sobbing and
crying, Goetz told the police that
yes, the boys had asked him for
money, and yes, he had been very
afraid. He confessed that he shot
the teens, but he went on to say
that his object was not only to
hurt them, but to kill them.
With the weight of this

confession, logic would dictate that least assault with intent to commit
Goetz would perhaps be convicted murder.
of attempted murder, or at the least,
of assault with intent to commit The recent ordeal of University
murder. Yet a jury returned a verdict professor Aldon Morris also belies
of not guilty. Why? Was it that the notion that we.live in a color-
the youths represented such a clear blind society. Morris, a nationally-
and present danger to his life that acclaimed scholar and professor of
shooting them was a justifiable act? sociology, was recently stopped by
Or did the fact that the four teens Ann Arbor police while driving
Goetz had shot were Black, while away from a meeting he attended at
he, the would-be victim was white, the Institute for Social Research
sway the jury? (ISR). According to the Ann Arbor
Police, Morris was stopped because
This last point is disturbing and he fit one of the descriptions of a
does not fit into the pattern of a man who had allegedly just robbed
color-blind society, yet it warrants a local bank - there was another
serious consideration. Let's suppose description given to which he bore
that the tables were turned. Let's no resemblence. Morris, who was
just suppose that a Bernard Jones, on his way to his daughter's
not Goetz, had been accosted by school, identified himself to the
four white teenagers who asked him police as a University professor
for five dollars. Now just suppose coming from ISR, and showed the
that Bernard Jones (who had been police the contents of a bag in his
attacked by presumably white front seat which contained not
muggers sometime in the past) money, but rather his daughter's
opened fire upon the youths, dancing shoes. He then returned to
shooting all four of them. As Jones the police station with the officers
empties his gun into the stunned and told them that his colleagues at
teens, he even walks over to an the Institute could verify his.
already wounded youth and shoots whereabouts during the time of the
him again. Had this scenario alleged robbery. Later, he was
actually taken place, and Bernard released.
Jones had openly confessed this
crime to the police and revealed his After securing an attorney,
desire to kill the boys, it is highly Morris returned to the Police
unlikely that he would have gotten station and instead of receiving an
off scot-free. Indeed, one can im- expected apology, was told by the
agine a jury returning a verdict of at - authorities that he was s till

considered to be a suspect. The
police had made no effort to verify
his story, and in addition, told him
that he could only clear himself by
submitting to a police lineup. In
case you haven't guessed it,
Professor Aldon Morris is Black.
His experience highlights the fact
that color does matter.
Consider the following: although
there were two differing descriptions
of the alleged bank robber, although
he was employed as a University
professor, although his story could
easily have been verified, Morris
was still a suspect. Again, were
the tables reversed, it is highly
improbable that a white male who
fit only one descritpion of a robber
would still have been considered a

suspect evea after it was known
that he was a Univeristy professor,
even after a search of his car turned
up no evidence of a roberry, even
after the police were asked to
verify his whereabouts with other
University scholars.
Although the police deny it, the
fact that Aldon Morris is Black did
play a part in his treatment. Racism
runs so deep that it is a part of
mainstream thought and culture,
playing itself out in our system of
justice. We have not arrived at a
colorblind society, despite the
dreams and hopes of the oppressed,
or the political sophistries of those
in power.
Williams is an Opinion Page staff
writer.

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