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Bork Chop: the good judge has gone global.

Coercing Virtue: The Worldwide Rule of Judges By Robert H. Bork AEI Press, $25.00

A professor once told me that one of the key lessons of history is never to bet on the apocalypse. Somebody better tell Judge Bork! In three grimly titled books--The Tempting of America, Slouching Towards Gomorrah, and Coercing Virtue, his latest--Bork has made it his mission to place America at various way stations along the road to perdition. A museum-quality curmudgeon, Bork places great stock in our country's traditional social, sexual, and religious values, and profoundly mistrusts change. But clearly our values have changed over time, and Bork is looking for someone to blame. In Coercing Virtue, he focuses his wrath on judges, portraying them as stealth fighters racking up win after win in the culture wars while the complacent public snoozes.

Given Bork's history with the liberal establishment, perhaps it's therapeutic for him to write on the same angry theme over and over again. But honestly, what's in it for us readers? In a world where the Woodstock generation is dosing on Riopan Plus, Fox is the top-rated cable news network, and Republicans control Congress, the presidency, the Supreme Court, and 10 out of the 13 federal courts of appeals, does Bork really think people are going to have the patience for yet another book about the perfidy of liberal judges? Not likely. So in this latest work, he's thrown in a new angle: He's gone global.

Coercing Virtue is about how judges both in the United States and abroad are goading the entire Western world over the decadent edge. Sometimes in evaluating a project like this, it's best to start by trying to put ideology more or less to one side. But in this case, even if you do, the book comes up short.

Problem number one is that, from the perspective of anything other than gimmickry, Coercing Virtue is a strangely conceived book. It ranges broadly from a discussion of international law and institutions to separate chapters on the United States, Canada, and Israel. The bits on international law and institutions are at least interesting--they echo provocative conservative scholarship on the political content of international law and its proper role in the domestic sphere. But the other parts of the book neither hang together nor stand up particularly well on their own. The U.S. discussion is merely predictable: Bork marches out a standard litany of perceived liberal outrages concerning sexual, religious, and minority rights. But the chapters on Canada and Israel are difficult to digest. While Bork may know a fair amount about the case law in those countries, it's not at all clear whether he has a handle on Israeli or Canadian culture. This is a real problem. After all, aren't at least some areas of these cultures considerably more liberal than American culture? Without knowing the baseline, how are we to take seriously the idea that Israeli and Canadian judges are torpedoing their societies' traditional values?

Bork's response might be that he cares less about the particular values of those countries than the institution of democracy--and its general decline in the West. But that brings us to a bigger problem. Bork professes to have great admiration for the elected branches of government--the democratic institutions that he praises for their capacity to "allow compromise, to slow change, to dilute and tame absolutisms:' But it turns out that his respect for those institutions finds its limits when they produce results he doesn't like. Consider, for example, Bork's dismissive treatment of the British parliament's decision to incorporate a multilateral human rights treat3, into its domestic law. "[T]he Labour government made incorporation a major part Of its program, while Conservatives opposed the move," he sniffs. "The coerced movement to the cultural left is predictable and familiar."

Coerced? Who was being coerced? The people voted Labor, and Labor passed the law. It's as simple as that. If Bork won't live by the results of the democratic process, then he should find another theory.

But that's not in the cards and so, when discussing adverse public opinion, Bork resorts to befuddlement and (for lack of a better word) insults. Bork finds it remarkable that the public is "unaware" of the agenda that judges are advancing. He says that it is "a mystery" why most people in the world (including Americans) think that United Nations approval gives American actions moral legitimacy. He says that the American public has "almost no idea of what is in the Constitution" and the great sovereign people of Canada are "similarly ill-informed." And he finds it "extraordinary" that the Israeli public has accepted a supreme court opinion that Bork views as conferring too much power on the Israeli attorney general. Ahh, the People: weird, inscrutable, incurious, and ignorant. Why not just call them boneheads and be done with it?

The conflict between Bork's theoretical affinity for the elected branches of government and his practical contempt for the democratic electorate is just one of the things in Coercing Virtue that fails to compute. There are others for sure. His credibility on liberal judicial activism in the United States suffers from a total failure to address the Rehnquist court's conservative judicial activism, as expressed in an aggressive record of overturning congressional statutes and landmark court decisions like Bush v. Gore. He also shows a marked absence of proportionality when he observes that the Israeli supreme court is "simply the most activist, antidemocratic court in the world"--an amazing statement to make in a world where at least some courts still operate under the thumb of dictators and theocrats.

And Bork's policy intuitions do not seem altogether sound when he suggests that the United States should simply "ignore the Security Council and the U.N. altogether and go about preserving vital interests with those nations that are willing allies." Interesting idea! But precisely who does Bork think would be our willing allies under those circumstances?

Oh, forget it. Maybe at this point in his career, Bork has become so accustomed to dismissal by his opponents that he no longer seeks to persuade through his work. There are legitimate points and absurd points in Coercing Virtue, but more than anything else there are obvious points, animus, and imploding logic. Coercing Virtue is a few notches above Ann Coulter's work, but not as many as it should be. Maybe the lesson is that it's time for Bork to start developing a new theme; from the looks of this book, the apocalypse genre is, for him, pretty well tapped out.

Stephen Pomper is a lawyer in Washington, D.C.
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Author:Pomper, Stephen
Publication:Washington Monthly
Date:Nov 1, 2003
Words:1103
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