Bork V. Borknby Michael LindnTempting America:nThe PoliticalnSeduction of the Lawnby Robert H. BorknNew York: The Free Press;n432 pp., $22.50nBattle for Justice: How the BorknNomination Shook Americanby Ethan BronnernNew York W.W. Norton & Co.;n399 pp., $22.50nTwo of the most vilified judges innUS history have probably beennJudge Robert H. Bork and Chief JusticenRoger Taney. Both gained notorietynearly in their appointments by demonstratingntheir willingness to fire opponentsnof a domineering President’s policyn(Taney, when in the Jackson administration,nfired directors of the Bank ofnthe United States who resisted Jackson’snunconstitutional withdrawals, and Bork,nas solicitor general, acted as Nixon’snagent in the Saturday Night Massacre).nBoth went on to judicial careers innwhich their adherence to the samentheory — original intent — led demagogicnpoliticians (Abraham Lincoln,nEdward Kennedy) to defame them asnlittle less than demons in black robes.n”Nothing personal,” as Kennedy toldnBork.nJustice Taney would probably havenlittle sympathy for Bork, who attacks hisnDred Scott decision as an example ofnjudicial activism (rather than the exercisenin original-intent jurisprudencenTaney believed it to be). However,nTaney would have recognized thentechniques that liberals used as part ofntheir successful effort to.defeat PresidentnReagan’s nomination of Bork tonthe Supreme Court. Kennedy’s infamousnspeech — “Robert Bork’s Americanis a land in which women would benforced into back alley abortions, blacksnwould sit at segregated lunch counters.n32/CHRONICLESnREVIEWSnrogue police could break down citizens’ndoors in midnight raids” — setnthe tone for the liberal smear campaignnthat followed.nThe story is best told in EthannBronner’s Battle for Justice, a breezynjournalistic account of the political maneuversnthat led to the defeat of thenBork nomination. Bronner’s chief revelationnis that Bork dug his own gravenin his confirmation hearings, confusingnthe right and unnecessarily horrifyingnthe left.nThe right could only be perplexednby the way that Bork, who had oncensaid, “An originalist judge would havenno problem whatever in overruling annon-originalist precedent because thatnprecedent, by the very basis of hisnjudicial philosophy, has no legitimacy,”npromised at the hearings not to seek tonoverturn Brown v. Board of Education,nthe 1954 desegregation decision, anclassical piece of judicial activism inndefiance of original intent. Such “confirmationnconversions” might havenbeen forgiveable if they had helpednhim get onto the Court. Bork himself,nhowever, seemed to live up to thenliberal caricature of him as an insensitivenmonster. As a federal judge, he hadnruled in favor of a chemical companynthat had allowed female workers tonkeep their jobs in a toxic environmentnonly if they agreed to be sterilized.nGrilled, Bork told the Senate, “I supposenthe five women who chose to staynon that job with higher pay and chosensterilization — I suppose that they werenglad to have the choice —they apparentlynwere — that the company gaventhem.” One of the women in questionninformed the committee that supervisorsnand fellow workers “referred to usnlike animals, such as dogs being spayednand neutered. They told us we werenbranded for life.” Bork admires JusticenOliver Wendell “Holmes, who, admonishednto “Do justice,” replied, “That isnnot my job. It is my job to apply thenlaw.” Even so, Bork’s argument thatnsometimes agonizing decisions arennecessary, if judges are to interpretnnnrather than make law, might have beennmore compelling if he had appearednagonized.nNot surprisingly, Bork’s own accountnof his ordeal in the final part ofnTempting America is distant and lessninformative than Bronner’s account.nBork’s critique of judicial activism,nhowever, is much more rewarding. Asna theorist, Bork resembles the hedgehognof Archilochus, who knew onlynone thing, but a very big thing. The bignthing that Bork knows is that legislatures,nnot judges, should make laws.n”The clash over my nomination,”nBork writes, “was simply one battle inn[a] long-running war for control of ournlegal culture,” in which judicial activistsnbelieve that constitutions and statutesn”are malleable texts that judgesnmay rewrite to see that particularngroups or political causes win.” Wherena judge gives in to the temptahon tonenact his own views of justice insteadnof what the law requires, “A judge hasnbegun to rule where a legislatornshould.” Gibbon put it more memorably:n”The discretion of the’judge is thenfirst engine of tyranny.”nAfter giving a history of judicialnactivism from the early days of thenRepublic through the “constitutionalnrevolution” of the New Deal and thenWarren Court, Bork, a former Yale lawnprofessor, takes the lamp of Diogenesninto the carnival-tent of legal theoriesnthat attempt to justify judicial activism.nHe not only fails to find an honest mannbut condemns the whole edifice as anfiretrap. He is just as critical of conservativenand libertarian advocates of judicialnactivism, such as Chicago’s RichardnEpstein, as of their more numerousnliberal colleagues, such as Stanford’snJohn Hart Ely and Bork’s late friendnand colleague at Yale, Alexander Bickel.nWhile Bork the critic of judicialnlawmaking is rigorous and persuasive,nBork the – legal theorist leaves somethingnto be desired. Bork’s own view ofnthe legitimate guides to the “originalnmeaning” of constitutional provisionsn