Judicial Power and American Character: Censoring Ourselves in An Anxious Age

By Robert F. Nagel | Go to book overview

3
Shaping Law: Elitism and Democracy in the Bork Hearings

Whatever else it may involve, law is a matter of restraint and, therefore, of character. Basic legal practices, such as the consistent application of rules and the impartial evaluation of evidence, require that desire be held in check. During the Thomas hearings, procedural fairness seemed, like a rider on a bucking horse, to be a light, almost ridiculous presence patently subordinate to large political forces and objectives. No one who watched Senator Metzenbaum question John Doggett could fail to see that much of the Judiciary Committee's proceedings were, in this sense, lawless. I suggested in the last chapter that this recognition should have triggered larger self-doubts, for as a society we have demanded too much of even our highest judges and our most fundamental law; we have wanted so much that we have jeopardized the complex and reciprocal expectations of forbearance that make law possible or even imaginable. Our own character is at issue, and our legal system stands in danger of being revealed as a charade.

Because law requires the disciplining of desire by self-control and intellect, it is sometimes thought (especially within the educated classes) to follow that law is the opposite of desire and that intellectualism is the crucial trait for a culture that aspires to legal norms. The most prominent advocate of this position is former judge Robert Bork, who in 1987 suffered through a prolonged inquiry at the hands of the Judiciary Com

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