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Bite Worse Than Bork

January 07, 1990

About Leonard Levy's review of Robert Bork's Book "The Tempting of America" (Book Review, Nov. 12):

I have had the privilege of meeting Judge Bork and the good fortune of taking two classes, years ago, from Professor Levy. I have also read most of Judge Bork's works (except his latest book, currently on order) and several of Professor Levy's books. I have concluded--as one surely must--that each man possesses a formidable intellect and a flowing and readable writing style.

How depressing for me, therefore, to read Professor Levy's review. Rather than focus on the merits or demerits of the book in shedding light on the Bork confirmation hearings or on the politization of the judicial appointments process, Levy spends altogether too much time indulging in an inappropriate attack on the doctrine of originalism. Worse, as he has done on other occasions (for example, in Levy's book "Original Intent and the Framers' Constitution"), Levy distorts Bork's position to the point of caricature.

Levy accuses Bork of ignorance as a historian. In turn, Levy might well be accused of ignorance as a lawyer and as a political scientist. In our democratic system--that Bork defends and many of his critics distrust--unelected judges nurture popular acceptance of their opinions by anchoring those opinions to the dictates of the received Constitution, not to their own values. That has been the traditional view by the judiciary of the proper methodology of adjudication.

There are many other dubious characterizations in Levy's review. (For example, to lump Bork, Scalia and Rehnquist under one philosophy is, at the very least, superficial). If The Times wants to provide a political forum for an attack on originalism, fine. But that ought to occur on the editorial page, with a fair chance for an opposing view. A book review should review a book, not air the reviewer's political opposition to the writer's opinions.

JOERG W. KNIPPRATH

Associate Professor of Law, Southwestern University School of Law

LOS ANGELES

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