There are some frightening implications of that direction, about which Bork would seem to have a
good case. Whether such ideological testing is overt as it was with Bork, or covert (as with Thomas and to
an extent Haynesworth if not so much Carswell), one of the most dangerous consequences is the prospect
that such politicalization of the Court may work to undermine its position in the rule of law and:

"If the Court comes to seem illegitimate, the legitimacy of law itself declines
and the moral obligation to obey it is cast into doubt." (11)

Not less auspicious is the likelihood that the travails will work to dissuade many from service. It is
also problematic that potential justices may be evaluated on a reductionist basis of particularistic views on
specific cases, both to the detriment of the larger philosophical framework and in disregard to the reality
that subsequent cases cannot be 'on all fours' with past considerations, in any event. The repercussions
throughout the legal system generally may be even more profound and dangerous.

The 'judicial reconstitution' connoted is most clearly evident in regard to Bork although it has spanned
all recent appointments (at least thru 1992). The 'circus' around that nomination (as Bork characterized it)
may not always be replicated precisely, but a three ring circus is more colorful and impressive, and
successful (per P.T Barnum). Deliberations by the Senate on Bork were virtually unprecedented in
duration. The tone of the campaign was, however, set tactically by Senator Kennedy just forty-five
minutes after Reagan announced his choice. Bork's America would lead to resegregation, back-alley
abortions, gestapo tactics by police (apparently not to be confused with Waco in the liberal mind), the
outlawing of any mention of evolution in the education sphere, censorship, and the like. Kennedy later
told the Boston Globe that he had to be stark so as to be able to hold people in line until time could be
assured to get their act together (12).

It was apparent to Bork that positions he had taken would be misrepresented as a result of such
diatribe. Most nominees will decline to discuss particularistic substantive questions (as Thomas was
criticized by the media for doing). He predicted an expansive incidence of that, and that choices would be
limited to less visible candidates. But as he had not been so, he knew he would have to be most definitive
or misrepresentations would go answered. The entirety of the hearing on Bork seems to have been
reflected in media coverage. While it varied, it was in his terms "unrelievedly hostile," as were the ads
that were floated.

The Center of Media and Public Affairs coded 232 television news and Washington Post stories about
the deliberations and found that 63 % of 381 judgments made in them were negative (13). Sources
regarding Bork's ideas ran 4 to 1 negative in the Post and 6 to 1 on the networks (for CBS, it was 8 to 1).
On the network news of July and August, 86 persons were critical of Bork, but only 16 were favorable.
After the hearings began formally, 29 such were critical and there was not one that was favorable. The
strategy is a well-defined one. A New York Times reporter wrote:

"Newspaper and television decide whom to ask and whose opinions to carry ...
when a reporter wants to express his opinion in a news story, he goes to a
source who agrees with him for a statement. In that way, a pretense of
objectivity is maintained." (14)

The Center as well described the use of news story tag lines by the networks. This is where bias covertly
appears. Even if the Center itself could be held biased if it were established that it was of a conservative
bend, its assessment is nevertheless revealing. Reporting about Bork held the record for any story they had
ever analyzed -- 100 % negative on all three major networks (15).

What has occurred over the last three decades is, in fact, demonstrative of the problem. Table 17-1
indicates (from the New York Times Index) the number of days of coverage of various nominees during
that period by the Times. This obviously does not address the content and tenor of the reporting or stories
at all, but it is interesting just in terms of raw numbers.

TABLE XVII-I
New York Times/Number of Days of Articles Reporting on Supreme Court Nominees
Presidential Nomination Through Senate Vote

Nominee Year Days of Reporting President's Party Party in Control of Senate
White 1962 6 D D
Goldberg 1962 7 D D
Fortas 1965 7 D D
Marshall 1967 7 D D
Burger CJ 1969 54* R D
Haynesworth 1969 44 R D
Carswell 1970 58 R D
Blackmun 1970 21 R D
Powell 1971 31 R D
Rehnquist 1971 40 R D
Stevens 1975 18 R D
O'Connor 1981 25 R R
Scalia 1986 25 R D
Rehnquist CJ 1986 25 R D
Bork 1987 98 R D
Kennedy 1987 28** R D
Souter 1990 38 R D
Thomas 1991 88 R D

(Table XVII-I continued)
*The unaccomplished elevation of Fortas to Chief Justice was accorded 20 days of coverage in 1968 before
he withdrew, not included in this number.

**There were also a dozen days of coverage given to Ginsberg's nomination in between Bork and
Kennedy before he withdrew his nomination.

The nominations of Ginsburg and Breyer by Clinton to a Democratic Senate received 14 and 16 days of
coverage each in 1993 and 1994 respectively, both of course with unitary Democratic control..
***
The obvious though perhaps most cynical explanation is that the first four appointees were named by
Democrats and posed to Democratic Senates, while all the subsequent ones were sent down by Republican
Presidents. In such an interpretation, it might be assumed that the relatively lower numbers for Blackmun
and Kennedy were in part a reflection of weariness after two nominations each time were scuttled. Sandra
Day O'Connor enjoyed a temporarily Republican majority in the Senate which was perhaps why her
nomination was much less controversial (although that would not explain an unanimous vote), and
although no longer in the majority, Republican strength was relatively greater in 1986 for the Scalia and
Rehnquist votes than for Bork the next year after the mid-term elections had taken place. Such assessment
does not do much to explain the reduced reporting on Powell or Stevens, however, and such a contrast
with the Democratic appointments might overlook the fact that this majority, although ostensibly
Democratic, was not as monolithic as the mere numbers might seem to indicate, as Southern Democrats
made up a sizable block of that majority. There is also the rise of the aforementioned variables in the
interim, ranging from disaffection due to Vietnam and Watergate to the rise of investigative journalism
and the interest group impact. It may also be the case that there was a heightened interest in, or regard for,
the Court, or a decline of other important coverage from one period to the other. What is striking,
however, is the obvious dichotomy posed by the figures between Democratic and Republican nominees,
and even between those of Nixon and at least most of those made by Reagan and Bush.

There has been an unmistakable trend of a much more important role for the Court overall, but even
moreso for the present period. The increased annual rate of overturning Congressional, state, and local
law as well as for reversing itself is marked. This is most particularly the situation since the 1960's and
appears to accelerate even with the current Rehnquist Court, and although the tendency was well-
grounded before this time, that fact seems to correspond to the rise in the incidence of rejection of
nominees. There would be a high correlation of that since the 1960's (16). This makes the observations of
Robert Bork all the more pertinent.

If Lance Bennet's thesis in his POLITICS OF ILLUSION (1988) relates particularly to political
coverage of elections in the news, such illusory devices are equally relevant in regard to Supreme Court
nominations as they have evolved. The branding of Reagan's Strategic Defense Initiative as 'Star Wars' by
Michigan Democratic Senator Levin moments after it was announced has served as such a device to
illustrate the problem. The connotations inherent in that phraseology have heralded press bias on the SDI
ever since. Favorable reporting rarely refers to Star Wars and ostensibly neutral stories under that banner
infer the desired bias. (It would seem that Levin and his cohorts missed a great opportunity when they
failed to brand the program 'Ray-Guns,' but maybe that did not convey their desired purpose adequately).
In 1992, as the Supreme Court handed down its ruling allowing a high school student in Georgia to sue
over alleged sexual harassment, newspaper stories had to remind readers of the allegations raised against
Clarence Thomas, in spite of the fact that the decision was unanimous. It should be noted that the New
York Times which 'broke' the story first devoted three paragraphs to the Thomas aspect. When the Detroit
Free Press 'rewrote' the report, there were 'only' two such relevant paragraphs, but it was a front page
article even though such rulings often do not win such placement. The Detroit News' coverage ran
basically line for line as the other two reports had, but it was not front page and only mentioned the
Thomas connection in one paragraph. The story as it was printed in the Wall Street Journal also
referenced Thomas, but only required three lines to do so.

Bennet's analysis is centered principally upon the problem of bias in media which occurs due to the
nature of news as 1) personalized, 2) dramatized, 3) fragmented, and 4) normalized (17). Given these
characteristics, it essentially cannot be without slant. And yet, the dilemna far exceeds those sources of
bias. The placement of the story (or of critical aspects of it early or late in the piece, perhaps not in so
prominent a place), the headline under which it is run, the organization of the coverage, utilization of trip
words, emphases in the reporting, overall tone of the piece, authorities relied upon, the salience of the
issues involved, the environmental context the story plays within, and the intensity of competition among
the public for its attention, are some of the critical contributors to bias which complement or complicate
Bennet's sources. An additional consideration here must be what might be termed the 'volume' of the
story. Certain matters relevant to that have been already entered here. Involving many of the
aforementioned ingredients of bias, the more and longer a story is played, the more salient it is likely to
become. As pointed up, that has become important in deliberations on nominees to the Court. The
organizational efforts which have been initiated (as from Senator Kennedy in the Bork instance) have
served to amplify the volume.

That raises another factor in bias. A rather recent work dealing with news coverage of the 1972
campaign has suggested a phenomenon termed 'pack' journalism (BOYS ON THE BUS, Crouse 1973).
The stories about the Georgia ruling illustrate the problem. Once a point is raised by a primary source, it
seems to reverberate through the rest of the media unfettered. Conversely, where something is similarly
passed over, it takes on the character of a tree falling in the forest where no one heard it. It simply did not
occur. The entire Perot campaign in 1992 may be an example of such reporting. It is an important element
in primaries in particular as to whom it is that receives the attention of the media, for such persons
quickly become the front runners. Characteristics of political behavior can be made or broken by such
attention. For example, it is widely touted that Perot's lengthy televised campaign slots were an original
creation, when it fact, they were a frequently used device of another perhaps 'Perot-like' character in
Presidential campaigns throughout the 1980's, whom the media dubbed 'maverick' and 'extremist' and
thus severely contained, and perhaps deservedly so, Lyndon LaRouche.

Larry Sabato has taken a slightly different tact regarding much the same sort of phenomenon in his
1991 FEEDING FRENZY. He has documented a mentality of 'attack journalism' which has developed
since the 1970's. While he traces it to an inattentive electorate and the obsession of the press with
sensational stories which are short-lived and designed to meet the public appetite for personal news, he
clearly sets its trivializing impact and its abuse in manipulation. It has discouraged citizens from more
active political roles and is impeding our democracy. A network of virtual 'character cops' have functioned
as an 'Inquisition' which is to too great a measure making the determination as to suitability of candidates.
While one might quibble as to his assessment that some of his examples are not the 'making mountains
out of molehills' he contends, it is clearly a more disturbing transformation than even 'pack journalism'
inferred. It is clearly the stuff that was aimed at Clarence Thomas, and is not unlike what was done to
Haynesworth and Carswell. Sabato does reference the Bork case (and Ginsberg) as exemplary of the
practice, although the treatment accorded Dan Quayle would be another prime example. (18). And yet, the
'character cops' seem to have taken a much different perspective toward allegations made against Bill
Clinton, even where they are similar in nature and more substantive than those leveled at Clarence
Thomas. Nor is it easy to forget the sight of Ted Kennedy sitting in severe consternation as Thomas was
raked for alleged sexual impropriety.

The application of such methods of biasing in the media to much broader attempts at influence over
our culture and political system is not an improper stretch. Such have been important weapons in the
arsenal of those involved in the cultural war mentioned above. Although the practices have been utilized
by 'both' sides in the conflict, there can be little doubt about from which direction the preponderance of
such forays come. They may even be said to have been an essential part of the onslaught on the civil
religion that has been alluded to here.

Tocqueville's prophecies may been accurate. Both Dionne and Bork raised the question of cultural
conflict in their books, and they are not alone in having done so. Far beyond the scope of the cultural
exoticies of the late sixties, there would seem to be the beginnings of a real cultural war in our society, and
one premised on precisely the factors Tocqueville articulated in his warnings as to the impact of an
expansive government. It should not be surprising that the civil religion should be caught up in the midst
of that battle. Ascribed to across ideology or theology in its role as social cement, the heightened tension
inevitably places strains on the bond which it cannot sustain. It is an essential element in the reaching for
legitimacy. Further, inasmuchas the tension results out of Tocqueville's caveat, coherence to the
fundamental character of the bonding device will break down. An analogous characterization might be
that of a cell in an organism (or group of cells) become dependent out of prolonged growth for its own
sustenance upon that which the organism itself requires for sustenance. The growth of the public sector
complex is in such terms a malignancy which, on Tocqueville, will destroy the republic by undermining,
among other things, republican civic virtue. The struggle may not be really new in our history -- indeed, it
has been the substance of our struggle from the very beginning. But the design, whether it be in Bellah or
Clinton or whomever, to construct a 'new covenant' is essentially the posing of an alternative civil religion
through the imposition of an alternative Geist, with all the divisive consequences which that infers.

To the extent that one wishes to put much stock in reviewers, it is not only possible that the design in
Lipset's FIRST NEW NATION and Bellah's HABITS OF THE HEART as well as BROKEN
COVENANT (among several of his works) are commensurable, but that the commensurability even has a
name. Michael Weinstein, writing in the Journal of Politics (19) in a rather critical review, identifies an
'institutional individualism' in Bellah and friends as 'the operative American ethic.' And David Potter in
the American Sociological Review references Lipset's utilization of a values systemization scheme to
compare a number of states on the basis of an achievement/equality dichotomy (20). The source of that
system in the later review is also the source of the term used in the former one: Talcott Parsons. B. Crick
makes the assertion that Lipset "brings the teaching of Talcott Parsons down to comprehensible earth and
puts the flesh of history on conceptual dry bones." (21). Parsons himself authored a review of Lipset's book
in the American Journal of Sociology (22). Praising the empirical and theoretical competence (which
others fault), he alludes to the methodology:

"In terms of content Lipset's analysis turns on balance between two primary
components, those of equality and of achievement, both, of course, against
the background of a basic individualism." (23)

But probably most revealing is his insistence, asserted repeatedly, on the work as demonstrative of Lipset's
"new level of maturity." It is not surprising that Parsons sees this book as one of great importance.

There are two other names that loom nearly as important in the reviews of both authors as they
appeared in the text of the works themselves. Alan Grimes (24) alludes to "observations of foreign
travelers" in Lipset, apparently in part a reference to the author's frequent reliance on Tocqueville, while
Oscar Hamlin (25) and Parsons (26) make much of aspects of the analysis drawing upon Max Weber. And
in the Journal of Politics Bellah Symposium (27), Donald Lutz, Weinstein, Rene de Visme Williamson,
and Shelley Burtt stress a Tocqueville connection, as does Bentley (28), while Weinstein (29) in particular
tracks Weberian influence in HABITS OF THE HEART. Quite obviously, such common strains do not of
themselves constitute proof of commensurability generally of any of its particular forms, but, especially
given their relationship to the core of each book's thesis, they lend considerable weight, albeit perhaps
circumstantial, to the contention. It may as well seem curious that the Tocqueville connection could be
made toward such contrary purposes as those expressed by him.

Grimes (30) finds the first section of NATION the "most coherent part of the book" and recounts its
depiction of the elitism and popular tendencies of the early American groupings, with its legitimacy being
acquired "by being 'effective' in the economic sphere." He suggests that a major theme of the other two
parts of the book revolves around the development of social values through a form of sociological
determinism:

"Thus the value system of a society influences the character of its institutions
and these shape the character of its citizens as they grow up. The character of
a society's members in turn reacts upon the character of its institutions." (31)

The "structural correlates of behavior" ... are the "codification of historical experiences."(32) The
'equalitarian -- achievement' value basis stems from 'antecedent causal factors,' the one growing out of the
Puritan ethic and the latter of the political experience of the Revolution. The reference has some problems
with evidentiary basis in the choice of consequent values which make Lipset's conclusions somewhat more
tenuous, but much has been addressed to such consideration earlier here.

In Political Science Quarterly (33), George Sheppeson describes Lipset's work as somewhat
perfunctory. As 'illuminating' as it is a first attempt to set the American experience as a prototype for
contemporary new nations, he finds problems of methodology and gapping holes in this attempt to sketch
out a national identity. The critique presented by Crick in American Politics Quarterly (34) is
considerably more substantive, but possibly only because the comment on Lipset is in the midst of
reviewing four other books as well -- and probably also effectively, a sixth book, that of Hartz on
liberalism as the American creed. It is Crick's contention that Lipset provides considerable support for the
thesis. Despite procedural problems he sights, he argues that NATION seeks "to demonstrate that values
affect social action." And he [Lipset] traces the very great effect in American politics and society of the
specifically American contribution of 'equality' and 'achievement.'(35) Crick goes further; this American
liberal tradition refutes the British empiricism of Popper, and Lipset further resoundingly treats the
"universality of the symbols of Americanism," representative as they are of a stable democracy leaning
toward egalitarianism.

David Potter (36) seems to appreciate the mix of sociology and history in Lipset much more than did
Shepperson:

"The study of human developments over time points up very sharply the fact
that initial social forces are likely to be profoundly modified or transformed by
a context of surrounding factors before the find expression in ultimate social
consequences, so much so that all analysis arguing directly from forces to
consequences is likely to be fallacious ...;"

and:
"While none of these hypotheses of direct impact [economic, environmental,
ideological, etc.] is completely in error, all of them tend to minimize the amplifying
or reducing effect of the intermediary factors that the past has imposed in its
spacious dimension of time." (37)

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