Book Reviews

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THE TEMPTING OF AMERICA'

REVIEBED BY MAJOR DANIEL P. SHAVER.

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The common tendency of a pubiic decision maker to aspire to utopia often will entice ajudge to elevate the desire to attain results that he or she believes to be valuable to society above the need to make decisions that conform to the letter of the law Moreover, the members of society, knowing that an appellate judge harbors the substantial power to interpret-and make-the law, understandably will not hesitate to exploit that tendency. These are Judge Robert H. Bork's principal theses in his book, T?te lbmpting ofAmerica.

Judge Bork asserts that America's judicial system has become inured to a form of heresy by which judges regularly eschew the anginal meaning of the Constitution and create new renditions of the document to accommodate moral and political agendas. As a result, judges not only abandon their functions as independent arbiters of what the law IS, but also improperly interfere with the legisiative process by determining what the law should be. Furthermore, Judge Bork points out that the persons who comprise the legal profession's intellectual class-that is, law school faculty members and iegai commentators-largely have welcomed the judiciary's practice of infidelity to the archetypical paradigm of constitutional law. With overtures of cynicism, he reminds the reader that, because creating case law entails academic manipulation, the intellectual class actuaiiy has become empowered by the practice of judicial legislation. Judge Bark argues that the ability of scholars to influence judges effectively circumvents the process of papular lawmaking. Accardingly, instead of founding law upon the will of the majority, interest g?oups conveniently can eniist the judiciary to adapt the Constitution to their awn agendas. Judge Bork sparer judges from much of the blame for this problem. Instead, he cites society's desperation for immediate results, and the willingness of people to use courts as mechanisms to facilitate political change, as significant threats to the Constitution's integrity. Not surprisingly, the most remarkable symptom of this danger that the author addresses is the pohticization of his own Senate confirmation hearings as a nominee for Associate Justice to the Uruted States Supreme Coun.

The author's style is aaceful and uncomplicated His analysis. however, is tremendously insightful and thought provoking. In essence, Judge Bark critically reviews every major constitutional Supreme Court decision since Marbury 1?. Madison Amazingly. m virtually every case, he raises one or more legal issues that the Court analyzed unartfully or incorrectly. He expiam how the justices often have ruled improperly by torturing the meanings of constitutional provisions More importantly, he describes how the justices frequently have relied on wrong or inapplicable constitutional prow-dons to arrive at correct decisions.

One of Judge Bork's accounts 1s particularly compelling: his analysis of B7own u Board of Education. The author argues that the resuit m Brawn was good, but that the legal reasoning manifested by the Court's opinion was bad. The Warren Court founded the Brown decision on the Fourteenth Amendment Equal Protection Clause. That clause, however, had tolerated racial segregation under the guise of separate-but-equal education facilities for over fifty years. Accordingly, the Warren Court had to abandon the onginai meaning of the Equal Protection Clause to justify its decision. In effect, the Court rationalized its decision predommantly by referring to social science studies that evidenced the substantial psychologmi harm that segregation imposed on black school children. The author never disputes that the Brown Court was correct; rather, he contends that the Court did not have to jettison the arigmal purpose of the Equal Protection Clause to arrive at its decision. Instead, the Court merely could have ruled that the "separate-but-equal" concept had failed to produce the equality that the drafters of the Fourteenth Amendment had desired. Consequently, seaegation actually violated the onsnal purpose of the clause-namely, equality before the law

Bark criticizes the Warren Court for venturing into policy making when the Constitution offered a firm legal basis far the same decision. Significantly, he exemplifies the Brown decision as the case that opened the floodgates of judicial activism. Once the academicians in the legal community were satisfied that the nation would not question a Supreme Court ruling that effectively constituted a proclamation of public poiicy, they had a new incentive to use all courts as forums for social change. This incentive spilled over to the Amencan people, tempting them to employ the judicial branch to effect political change by urging It to redefine constitutional principles to Satisfy special interests.

Significantly, the temptation about which Judge Bork admonishes American society is equally attractive to all public sewants-including judge advocates. As officers and lawyers, the Army often places on us the responsibility to make decisions founded on sound,

deliberate, and impartial judgment. Such decisions must be faithful to the law, not only because we are bound to defend it, but also because-as Judge Bark would argue-any decision not based on law necessarily manifests B personal judgment instead of a legal one.

The mpting of Arnica is a provocative and well-written dissertation that chastises the transformation of the judiciary from an independent, process-oriented branch to a politically influenced, results-oriented government institution. Whether or not the reader =sees with his conclusions, Judge Bork's arguments and analyses provide considerable food for thought.

COLD WAR CASUALTY *

In creating the Uniform Code of Military Justice (UCMJ) in 1950, Congress decided that commander involvement-in selecting court members, in referring courts-martial to trial, in approving find-rngs and sentences-was proper and necessary Congress understood, however, that a commander desiring a particular court-martial resuit might use these lawful powers to improperly influence the court-martial process. Consequently, to guard against such command influence, Cong~ess made it illegal under Article 37, UCMJ to "coerce or, by any unauthorized means, influence the action of a court-martial." Despite this provision, unlawful command influence occurs from time to time in the military justice system. Judge advocates interested m an early command influence episode will want to read Cold War Casualty, the story of the 1962 general court-martial of Msjor General (MG)

Robert W. Grow.

Major General Grow, an experienced soldier who commanded the 6th Armored Division during the Battle of the Bulge, was the senior militan attache in Moscow in 1851. He kept a diary, into which he made a number of "mpoiitic" personal observations. Unfortunately for MG Grow, B Soviet agent photocopied portions of

.GEoROE F HOFMLYN, COLD WAR

CASIALPI (Kent Sfate Knlvermy Pres 19931,251 pages (hardcowri

"Judge Advocate General's Corpi, UmLed States Army. Cvmenfly mimed 81 a Student United States Amy Command and General Staff CoUeEe. Fort Leaven-wonh,

Kanrar

the diary When these were combined with some forged diary pas-rages, and distributed to the press, MG Grow emerged as a "maniac" who "was part of an international conspiracy to unleash a new world wm" against the Soviet Union Given MG Grow's role in Mai-cow, many in the Western media, particularly the mfluential Warh-inston Post, believed the propaganda. Moreover, some in the Army believed that MG Grow's diary contamed classified mformatmn. Consequently, its copying by a Soviet agent had compromised secu-rity, and made Grow guilty of violating an Army regulation prohibiting the unauthonzed disclosure of classified Information. The end result was that Grow's superiors decided to court-martial him for these unauthorized disclosures, but Grow "welcomed the proceedings as a path to vindication." He was not, however, cleared of wrongdoing. Instead, MG Grow was convicted at a general court-martial, and sentenced "to be repnmanded and to be suspended from command for a penod of six (6) months."

In detailing the court-martial of MG Grow, author George Hofmann shows that Grow's defense counsel were unable to present the vigorous defense expected m court-martial practice today. They were denied the opportunity to travel to Europe to interview wit-nesses, and repeatedly were prohibited from examining documents and obtaining other necessary and material evidence Hofmann sug-gests that this reflects the unlawful command influence exercised by the Army Staff, particularly the Deputy Chief of Staff, Lieutenant General (LTG) Maxwell Taylor. Taylor, writes Hofmann, was involved intimately in the Grow court-martial because he personally disliked Grow (the latter had cnticmd Tayior's performance in the Battie of the Bulge), and because politically It was expedient to court-martial MG Grow gven the "mtalerance, political extremism, and uncer-tainty produced by the Cold...