Mark Gitenstein

WHY READ THIS BOOK?
Joe Biden's personal life, including the loss of his first wife and daughter, and then later the loss of his son, along with his personal attributes (compassion, empathy) were all over the news during the 2020 presidential campaign. As the campaign ended I picked up Promise Me, Dad - Biden's own account of his son Beau's fight with cancer and its impact on his decision not to enter the Presidential race in 2016. I read and reviewed that book way back in January.

About that time I also picked up this book in the hopes of learning more about Biden's career. But, as the book seemed like it would be a bit dry, I let it sit on my TBR until now.

Published in 1992 this book is more or less a rebuttal to Judge Robert Bork's bestseller The Tempting of America, in which he portrays himself as a mainstream judicial nominee whose "originalist" philosophy was wrongly characterized in his failure to be approved to the Supreme Court by Joe Biden's Senate Judiciary Committee and the full United States Senate. Gitenstein begs to differ.

THE BOOK
1987 was a pivotal year in the career of our current president, Joe Biden. That was the year that Biden started his first run for the Presidency. He also successfully led the effort to defeat the nomination of Robert Bork to the Supreme Court. Balancing both a Presidential run and his responsibilities as the chair of the Senate Judiciary Committee became more politically untenable as the year went on, and this reality, coupled with the plagiarism accusations that arose on the campaign trail, prompted Biden to drop his Presidential bid.

Gitenstein served as the legal counsel to the Judiciary Committee and is a long-term confidant of Joe Biden. He spends most of his time in this book on the second major event for Biden that year - his leadership of the Judiciary Committee in turning back Bork's nomination.

The book has two main thrusts. First, it outlines how Biden and his team approached the nomination. As Gitenstein relates it, Biden wanted first of all for the process be seen as fair by all involved. But he had some fundamental concerns about Bork's writings and judicial philosophy, and spent a good amount of his prep time for the nomination hearings trying to find a way to express those concerns so that they would be relatable to folks who "don't have Yale Law degrees", i.e., the majority of those tuning in to watch the hearings on television.

The second focus of Gitenstein's book is explaining Bork's judicial philosophy, and his writings and speeches, and the concerns raised by them. I can't do it justice (no pun intended) in a short review, but basically Bork was an "originalist" who took the narrow view that the law only meant what the words on paper said, or could only be interpreted based on the intent of those who wrote the laws down, as evidenced by records available to us. Thus, he took the position that if the Constitution did not spell out a right explicitly, then such a right simply did not exist. This means that Bork found no right to privacy in the Constitution, which led to no right of married couples to make private decisions on birth control. It also meant that Bork found no basis in the Constitution for the Federal role in ending segregation. Indeed, most civil rights law Bork felt was on "shaky ground". And he had been pretty explicit in his speeches about his willingness, should he have the chance, of overturning Supreme Court precedents.

Thus, Bork's philosophy was at odds with the long-standing tradition, even preceding the Constitution, and best summarized in the Declaration of Independence, that people have certain "inalienable rights" that governments cannot take from them, whether those rights are explicitly written down or not. That's clearly not a popular notion, and based on that, his nomination was in trouble from the start.

Gitenstein also covers the political strategy that led to Bork being nominated, and goes into some depth on the plagiarism accusations, which were really more of a dust up than a scandal, even if the press played them very seriously.

MY TAKE ON THE BOOK

If you are a history junkie, or a political junkie, and you have a good working understanding of the ways of Washington then this book is in your wheelhouse. If you are like me and looking for more understanding of the career of our current President, or aren't old enough to remember the Bork nomination, than this book is good history lesson.

I am old enough to remember (vaguely) the Bork nomination, and I think that added to my experience with the book. It is not a pop press "tell all" book. In fact, its a bit dry. So for that reason I give 3 of 5 Stars ⭐⭐⭐ to Matters of Principle.… (mehr)

Mark Gitenstein was Chief Counsel to the Senate Judiciary Committee, chaired by Senator Joseph Biden, during the Bork nomination hearings. Bork had been nominated to replace Justice Powell on the Supreme Court. Gitenstein has written an insiders account of the process in Matters of Principle.

The battle between Democrats and Republicans remains an ideological conflict. Both sides had very different judicial philosophies. Judge Bork argued for a very narrow interpretation of the Constitution; that rights not specifically enumerated in the Constitution could not be protected by the federal government. His opponents argued that Bork ignored the ninth amendment that retained rights in the people even if they were not specifically spelled out and that the court had an obligation to protect those rights. (See The Tempting of America by Robert Bork for a very concise explanation of Bork’s judicial philosophy). Thus, according to Bork, if the Constitution did not categorically state that you could educate your children, you could be denied the right to educate them at home or send them to private school; that because segregation or integration were not mentioned by the framers, segregation was a legitimate form of social structure for states to adopt; and because no generalized right to privacy was articulated, states could prohibit the sale of contraceptive devices or permit wholesale abortion if they desired.

This opposition to Griswold v. Connecticut is interesting because it reflected a complete about-face. In 1963, articulating his libertarian stance, Bork had argued that Griswold reflected a generalized right to privacy even though it was not specifically declared in the Constitution. By 1971 his position had completely reversed. This position switching was not unusual. After all Bork had begun as a Socialist and as a young man had even handed out Communist leaflets. This was an outgrowth of his poor background. After college, however, he decided the way to way was strictly through a free market approach and from there he adopted the libertarian stance, radically arguing against the civil rights movement and legislation as an infringement on a white man’s right to sit next to whom ever he wanted, a denial of his right of association.

By 1971 he was unalterably opposed to one-man-one vote decisions and court decisions that struck down legislation forbidding the establishment of private schools. By 1937 he was describing himself as a “Burkean” and was irritating his friends on the right by suggesting that a balanced budget amendment was foolish and silly. He was particularly enrage by “intellectuals” (although a major reason for his escape from a Washington law firm to Yale University in the fifties was his desire for a more intellectually stimulating environment.) By Burkean he meant opposition to “broad sweeping abstract principles as a way of organizing society, because they tend to be highly coercive; respect for community, tradition, constitu­tional structure; a willingness to look at a law and ask ‘will it do more good than harm.”’

So Bork had made the journey from “Socialist to Communist to New Dealer, to free-market advocate, to libertarian, to strict constructionist, to statist, to Burkean.” His mentor Alexander Bickel (The Least Dangerous Branch is on my TBR list) who had also moved from liberalism to Burke counseled to always push himself and never to cower in public debate, nor fear unpopular positions. That was were he was at the time of the nomination hearings. He was also a prolific writer who enjoyed provoking, as most of the writings were originally speeches that were intended to provoke. Those provocations made it difficult for the White House which was trying to portray him as a moderate replacement for the middle-of-the-road Powell.


Bork’s nomination was a response to Reagan’s failure to achieve adoption of his social agenda. Patrick Bu­chanan, Reagan’s communications director had argued, “The appointment of two justices to the Supreme Court could do more to advance the social agenda — school prayer, anti-pornography, anti-busing, right-to-life and [ending] quotas in employment — than anything Congress can accomplish in twenty years.”
This use of the judiciary to achieve political ends was not new. Andrew Jackson and Franklin Roosevelt had personally orchestrated campaigns to change the philosophical nature of the court. The Senate has always considered it to be its prerogative to thwart such ventures.

In the end, Borks’s extremest positions on numerous issues, obvious from a trail of documents, made it impossible for the White House strategy to portray him as a moderate. They lost the support of the moderates and southern Democrats whose votes they needed for confirmation. Ironically, though, a major reason for Bork’s defeat was less his judicial philosophy than the failure of the Reagan administration to publicly support its nominee. Bork had pleaded with White House staff to have the president issue a speech on his behalf; but Reagan never left the sidelines.
Bork’s position - that no set of values was supreme (“there is no principled was to prefer any claimed human value to any other”) is a startling proposition coming from a self-proclaimed conservative and the author ofSlouching for Gomorrah for it means courts would be prohibited from enforcing the values they wanted adopted. This logically led him to the conclusion that courts can only enforce contracts, the Constitution being merely another contract that must be read literally. The judge must not choose between a competing set of values, but must return to the document for a literal reading much like a will.

Perhaps ironically, Thomas Grey of Stanford has pointed out in 1975 that “Bork’s views and those of New Deal liberal Hugo Black were similar in that ‘constitutional doctrines based on sources other than the explicit commands of the written constitution were illegitimate.’” Black has also used a Burkian approach to argue against the Supreme Court’s imposition of arbitrary values and creation of “right” that prevented New Deal legislation. This conservative Supreme Court argued that an employee had a “right to work” for as little per hour as he wanted. Bork has recently stated that the Supreme Court's activism began with this early twentieth century court; that it wrote all sorts of free market “nonsense” into the Constitution. So Bork has argued he was simply using the liberal’s criticisms of an earlier court when he decried the Warren court’s activism. That earlier court had also laid down much precedent for the development of privacy and individual rights, however; a trend that Black noted and Bork has perhaps ignored. In Pierce v Society of Sisters (1925), a decision that Bork has called “intellectually empty,” the court struck down a law that would have prohibited home schooling

Bork contended the 9th amendment, often used to define rights not specifically enumerated in the Constitution, is essentially meaningless, yet therein lies the most important core of original intent of the Framers.… (mehr)