European Stars and Stripes (Newspaper) - August 7, 1990, Darmstadt, Hesse Page 10 columns the stars and stripes tuesday August 7,1990 .,Awi-aj�4 Aanthony Lewis slogans done to help determine a judges Worth we have also Ruiey no Pifa what5 lit Here when hearings get under Way next North on the domination of judge David a Butch to the supreme court it would be a Relief if senators and others dropped from their vocabularies the weary slogans applied to judges in recent years we have had enough of a a activists and a original Isth and the like. President Bush contributed to the sloganeering tendency when he announced the nomination. Asked by a reporter about a outcry a constitutional views the president said a what in a certain of is that he will interpret the Constitution not legislate from the Federal Ever since 1803, when it decided mar Bury is. Madison the supreme court has been displeasing one group or another by its constitutional decisions. Disagreement is inevitable because of the nature of the Constitution. Its great clauses arc so spacious in their phrasing that judges arc bound to differ in applying them to Concrete cases. A dug process of Law or a Freedom of speech arc not self defining commands. And they were not meant to be. The framers of the Constitution used such open ended phrases because they understood that a detailed specific code would soon be dated and useless. A leading authority on the first amendment professor Leonard w. Levy of the Claremont graduate school put it a the framers had a Genius for studied imprecision. They were conscious of the need to phrase the Constitution in go neral sized terms and without a lexicographical guide for they meant to outline an instrument that would serve future of course judges differ in the weight they give to earlier decisions to precedent. But there again slogans arc unhelpful. Justice Antonin Scalia of the present court is called a conservative. But no one is More Radical in the desire to wipe out precedents that he considers ill founded. Perhaps it is romantic a i confess to being a romantic about the supreme court a but it should be possible to discuss a judges philosophy without pejorative slogans. Justice William j. Brennanjr. Did that on the supreme court never questioning his colleagues Good Faith no matter How Strong their disagreements. Bush noted that in some Graceful remarks on Brennan a retirement. A this powerful intellect Quot the president said Martin Gottlieb a i993�?Tr4epzbu-0=-k a this winning personality and importantly his commitment to civil discourse on emotional issues that at times tempt uncivil voices have made him one of the greatest figures of our sloganeering about the supreme court has gone on for a Long time and people on All sides of the political spectrum have engaged in it. If it seems nastier now that May be because of the heat aroused by the fight Over judge Robert Bork a nomination to the supreme court and its rejection by the Senate. Bork advanced an extreme theory of constitutional interpretation that the Only lawful Way for a judge to proceed is to find the a original intention of the framers. Bork did not himself rigidly follow such a Precept when he was on the Bench. But in the bitterness of defeat he and his followers have nailed their colors to it. A review of Bork a Book by professor Bruce Ackerman of Yale exposes the concept for what it is a historical theory with no basis in history. The review in the april Issue of the Yale Law journal appears in somewhat Shorter form in the summer Issue of the new quarterly the american Prospect. American judges cannot escape the duty of finding the meaning of the Constitution again and again. The reason was Well stated in an opinion _ explaining Why the first amendment disallowed a political libel suit a we know very Little of the precise intentions of the framers and Ratineri of the speech and press clauses of the first amendment. But we do know that they gave into our keeping the value of preserving free expression. A perhaps the framers did not envision libel actions As a Majot threat to that Freedom. But if Over time the libel action becomes a threat to the Central meaning of the first amendment Why should not judges adapt their doctrines a Why is it different to refine and evolve doctrine Here so Long As one is faithful to the Basic meaning of the amendment than it is to adapt the fourth amendment to take account of electronic surveillance.? a to say that such matters must be left to the legislature is to say that changes in circumstances must be permitted to Render constitutional guarantees the opinion was by judge Robert Bork. It new York times 1 a Bush switch hurts in the fuss about president Bush a flip hop on taxes a writers thoughts turn to Peggy Noonan the writer. The speech in which George Bush first said. A read my lips no new taxes Quot was the speech that made Peggy Noonan famous. Before that Ghe had been writing speeches for president Reagan and the political Community knew her As the author of some of his Best Inch lying one he gave at a world War ii commemoration. But she was unknown to the Public. Now her Book about the Reagan White House is hot. She son All the talk shows. Sites the Standard with which Bush a current speech writers Are compared. They come off badly she a tied with fed Sorensen for being the most famous w Hile House speech writer Ever the no Neva taxes speech made the difference. She a famous for transforming George Bush a image from wimpy to presidential almost overnight. The speech did that partly because the wimp thing was an easy charge to dispose of partly because he delivered the speech masterfully partly because it was a terrific speech partly because of the line a i am that Man Quot and partly because of the no new taxes line. The taxes part of the speech was obviously designed to Deal with the wimp image. Bush said a Congress will ask me to raise taxes and ill say no. And ask me again and ill say no and ask me again and ill say a read my lips. The words of course were hackneyed even before Bush spoke them. Its ironic that Noonan gets remembered for them because she has written much that is much better. But delivered Well by an alleged wimp in his first big speech to the nation those words did have an Impact. So it s another irony that Only now a now that he s rejecting the of Campaign pledges thought expressed by those words a is George Bush really coming into his own. Only now is he demonstrating personal strength showing that he knows the difference Between Ronald Reagan and George Bush and that he really believes in George Bush a reality based View of the world. First he convinces the world that he has some Backbone. Then he develops a Backbone. You have to wonder How much buggy Noonan affected the course of things. If she Hadnot come up with her memorable lines would Bush Ever have taken the tax Issue and gone off the deep end if hackneyed phrases work so Well for her maybe they re Worth a try i Here Are one reads Hollywood movies that derive from advertising campaigns. That is somebody comes up with an idea for a Campaign that would attract people to Heaters and Only then does somebody set out to make the movie to go with the ads. Done to you get the feeling that George Bush a temporary inti tax stand was the afterthought the movie that justified the Campaign buggy Noonan did no to get George Bush elected. He was going to win that race no matter what. If Dan Quayle bring Bush Down nothing could. It was just a Republican year. What Noonan did do a if indeed she was the inspiration for Bush a plunge Oft the deep end a was greatly complicate his task of governing the nation responsibly. Even if he does the right thing now and pulls it off i Ley this hackneyed stuff gets easier and easier he will do so Only at the Cost of great personal embarrassment and of fractured relations with his party s right Wing. And he will a with his Campaign lie a have unnecessarily fostered the already widespread cynicism about campaigns politicians and american democracy. Writers a x Fiji a i
