In Memoriam

Robert Bork’s America

Reagan’s Supreme Court nominee: The Constitution and the savage attack that made his name a verb.

By 12.20.12

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Robert Bork passed away yesterday at the age of 85. 

A more decent man it would be hard to find.

That was, of course, not what was being said about him when President Reagan nominated him for the Supreme Court in July of 1987.

Famously -- make that infamously -- then-Massachusetts Senator Ted Kennedy took to the Senate floor and bellowed this: 

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy. 

Were Robert Bork not a public figure the remark might have been slanderous.

It was slanderous, just not legally so.

At the time, I was a young member of Ronald Reagan’s political staff. And we, as with a good number of our colleagues spread out over the fiefdom that is a modern day White House, were charged with making the case for Judge Bork.

Erroneously, we assumed this would not be a difficult thing to do.

Here was a man who had been a Phi Beta Kappa at the University of Chicago law school. A United States Marine. A member of a prominent Chicago law firm and then a longtime professor of law at Yale Law School. Where his students included a young Bill Clinton, Hillary Rodham Clinton, Jerry Brown, and Anita Hill, among others. From Yale he went on to be Solicitor General of the United States.

Let’s pause here.

To be Solicitor General of the United States -- the U.S. government’s lawyer -- is usually a prestigious but uncontroversial position. In any administration, if there is controversy at the Department of Justice that controversy usually swirls about the Attorney General of the moment.

It was Robert Bork’s misfortune -- and the nation’s great good luck -- that his tenure as Solicitor General came during the administration of Richard Nixon. Specifically, right in the middle of the Watergate scandal. 

As the howling pack drew near, Nixon’s Attorney General Elliot Richardson appointed the liberal Kennedy friend and JFK Solicitor General Archibald Cox, himself then a Harvard law professor, as a Special Prosecutor to investigate Watergate. Cox began making the kind of demands of Nixon that were inevitably doomed to be resisted, specifically a demand for Nixon’s White House tapes. Nixon, of a Saturday night in October 1973, demanded Richardson fire Cox. Richardson refused -- and quit. So too with the next in line at Justice, Deputy Attorney General William Ruckelshaus. With both the Attorney General and Deputy Attorney General abruptly quitting, the Nixon directive fell to the number three official at Justice -- Solicitor General Bork. It would serve no purpose for yet another resignation. Someone had to run the Justice Department -- there was, after all, much on the DOJ plate beyond Watergate. Feeling obligated to follow a legal directive from the President of the United States -- Acting Attorney General Bork fired Cox. Knowing full well he was summoning the whirlwind.

There was, of course, an uproar. But for the moment it seemed to pass by Bork. He was, self-evidently, a genuine legal scholar, not some sort of political hack with a law degree. It was Bork’s skillful legal work as Solicitor General that Richardson believed was responsible for convincing then-Vice President Agnew to resign with a plea bargain, rather than litigate corruption charges against him. In the day Agnew was a major political figure in his own right, and easing him out of the vice-presidency was hardly the act of a fevered Nixon-loyalist. A new Attorney General -- Ohio Senator William Saxbe, a former state attorney general -- was quickly appointed and confirmed. Bork stayed on, returning to Yale when Jimmy Carter took over the White House and appointed his own old friend as Attorney General. Eventually he made his way back to Washington in the prestigious law firm of Kirk and Ellis.

By 1982 Ronald Reagan had appointed Bork to the U.S. Court of Appeals for the District of Columbia. Where he was toiling away with his well-established brilliance when Reagan appointed him to the Supreme Court.

The Reagan White House was, that summer of 1987, thoroughly unprepared for what was to unfold.

While it’s hard to conceive today, once upon a time nominations to the U.S. Supreme Court were respectful, not to mention non-eventful, happenings. Some would-be Justices would endure confirmation hearings that lasted mere minutes as Senators respectfully, if not worshipfully, gave them a pass-through to a seat on the nation’s highest court.

The Reagan staff, at that point led by White House Chief of Staff Howard Baker, himself a former Senator, Senate Republican Leader, and son-in-law of a Senate Republican Leader (Everett Dirksen), was if nothing else looking forward to one of these respectful Senate performances by his former colleagues.

That changed -- indeed a lot in the political world changed -- when Ted Kennedy rose that fateful July day and let loose with a speech that was instantly tagged as “Robert Bork’s America.”

What was launched by Kennedy that day was but the beginning of a full-on attack on Judge Bork that was orchestrated by all manner of Washington special interest groups. Sitting in the White House, reading a massively thick briefing book on the Judge’s opinions, it finally dawned that what was in the book was absolutely, totally irrelevant. These groups had been secretly planning this assault long before Reagan made his announcement. Bork was such a large legal figure they correctly assumed he would be Reagan’s choice -- and they were right.

The Kennedy statement was specifically designed to be stark -- to act as a fire bell in the night for liberal interest groups. It worked.

Suddenly the confirmation process was a cockpit of personal vitriol and scurrilous attack. Instead of a respectful process, groups like People for the American Way, the AFL-CIO, the Leadership Conference on Civil Rights and more… much more…. going after a Supreme Court nominee in a stunningly ferocious fashion.

Sitting inside the White House, my colleagues and I listened agog to tales of liberal investigators visiting Judge Bork’s neighborhood video store to surreptitiously get a list of his video rentals. Looking, presumably, for pornography. To their vast disappointment they discovered the Judge had a taste for Fred Astaire movies. On another occasion we discovered a paramedic had been tracked down to learn why he was summoned to the Bork household. Only to find there had once been a fall of some sort -- not, as they were hoping to find, that the Judge was a heavy drinker and had fallen as a result. There was more -- he was of course now belatedly pilloried for firing Archibald Cox -- and it was all the more remarkable coming as it was from people who presented themselves as strong supporters of a right to privacy and civil liberties.

On another occasion I received a call from my parents. A letter from the national denomination of our church -- the United Church of Christ -- had been mailed to our home in Pennsylvania. The letter was a slashing attack on Judge Bork, portraying him as a racist thug. As it happened, I had been home the previous weekend and been in church. I make it a practice not to use my church as a political pulpit -- we have members of all political stripes and they are there to worship Christ not politics. But of course they knew I was working for President Reagan -- many (but not all) had voted for him. One such member, an elderly man, quietly took me aside to tell me how much he liked Judge Bork. While I hadn’t thought about it much at the time, when the letter arrived at our home I realized the national church staff had -- without consulting a single member in our church, and using in part this man’s collection money without telling him -- financed and mailed this outrageous letter.

I contacted the then-president of the UCC and expressed my concern. Shortly afterward I was seated across from a UCC national staffer at a Washington restaurant for a wonderful conversation. While minds on Judge Bork were not changed, never again were church resources used in political fights over Supreme Court Justices.

Judge Bork was eventually defeated because of all of this. But as many liberals have had cause to reflect since, the Bork hearings poisoned the well not only for Senate confirmation hearings of Supreme Court justices but for confirmation hearings period.

As time moved on, the fights moved from the Supreme Court on down to the Court of Appeals and even the occasional District Court nominee. It is fair to say that other, non-judicial nominees were dragged into this process.

A process that wound up being labeled in short-hand with Judge Bork’s own name. In today’s world of Washington, when stiff opposition to a nominee or a public figure’s possible appointment arises it is said that the nominee is being “borked.” The term eventually made it into the dictionary. Webster’s defines it this way:

To attack a candidate or public figure systematically, esp. in the media.

Only days ago the withdrawal of UN Ambassador Susan Rice as a potential Obama nominee for Secretary of State drew outraged cries from supporters that the Ambassador had been “borked.” If so, it is a classic example of what goes round, comes round.

While there are many who believe the fact that Judge Bork never served on the Supreme Court was a miscarriage of justice, Bork himself soon turned his powerful intellect to writing. And in one particular book he zeroed in on as what many had seen as a growing problem in America but one that had not been clearly articulated. The publication of Judge Bork’s The Tempting of America: The Political Seduction of The Law gave us not only a bestseller, but a landmark book on the infiltration of politics into areas of American life that once were seemingly immune to politics. Wrote Bork:

In the past few decades, American institutions have struggled with the temptations of politics. Professions and academic disciplines that once possessed a life and structure of their own have steadily succumbed, in some cases almost entirely, to the belief that nothing matters beyond politically desirable results, however achieved. In this quest, politics invariably tries to dominate another discipline, to capture and use it for politics’ own purposes, while the second subject -- law, religion, literature, economics, science, journalism, or whatever -- struggles to retain its independence. But retaining a separate identity and integrity becomes increasingly difficult as more and more areas of our culture, including the life of the intellect, perhaps especially the life of the intellect, become politicized. It is coming to be denied that anything counts, not logic, not objectivity, not even intellectual honesty, that stands in the way of the “correct” political outcome.

So wrote Robert Bork in 1990.

By 2012, this trend has become a cultural virus of sorts. Nowhere more exemplified than in the mainstream media, whose affections for President Obama were not reserved for the opinion pages but flooded the hard news stories -- or not, if in fact the story involved something unfavorable to the President.

In fact, the story of my own denomination’s letter on Judge Bork’s nomination was a perfect example of the domination of a religious faith by politics. While the UCC no longer gets formally involved in Supreme Court fights, it does indeed leap with abandon into politics on all manner of other issues.

But it was how this “temptation” had affected the law that was, quite naturally, Judge Bork’s first concern.

In a precise and thorough style, Bork grappled in his book with the infection of politics in relation not only to the Supreme Court but how it had infected the law in relation to everything from race to private property and free enterprise.

In particular, there was a lengthy discussion of how the liberal drive to use politics to run the courts had resulted in the horrific 1857 decision of the Supreme Court on slavery. Known in legalese as Dred Scott v. Sanford.

Bork, accused of being a racist in an abominable untruth, was deadly in his examination of the role liberalism had played in trying to write slavery into the Constitution forever.

Taney, he wrote of Democrat Andrew Jackson’s Court appointee, the slave-owning Chief Justice Roger Taney, used the Dred Scott case (the case of a slave suing for his freedom because he was “taken by his owner into the free state of Illinois and then to federal territory where slavery had been forbidden by the Missouri Compromise”) as the chance “to make his resentments and his adherence to the cause of the slave states into constitutional law.”

In other words, what Taney was doing with race all the way back in 1857 is what modern liberal court activists now do routinely in all manner of cases dealing with all manner of issues. Meaning: Taney wasn’t following the law, he was giving vent to his personal politics.

This is the argument conservative jurists have taken on repeatedly since Robert Bork was rejected for the Court. And in fact, even before.

There is an irony here with Bork.

Reagan’s first three Supreme Court nominations went to the first woman nominee, Sandra Day O’Connor, followed by moving Justice William Rehnquist into the Chief’s spot on the retirement of Warren Burger, and Antonin Scalia into Rehnquist’s Associate Justice position.

Bork had been considered at the time, but it was Scalia who got the nod -- and as it turned out it was Scalia who was approved easily yet became for the left exactly what they feared in Bork. A Supreme Court Justice of fearsome intelligence and devoted to “originalism” -- interpreting the Constitution as written, not as the Justice’s personal politics may dictate.

At the close of The Tempting of America, to illustrate his concern about the politicization of the law, Judge Bork used lines from Robert Bolt’s play A Man for All Seasons. The story of the British Lord Chancellor Thomas More, executed by King Henry VIII for his loyalty to Papal Authority.

The lines come from a dialogue between More and his son-in-law Roper, who was urging More to arrest a man seen as evil because the man had broken God’s law -- although not English law.

When Roper insisted “there is God’s law” to be considered, More replied: 

“Then God can arrest him…. The law, Roper, the law. I know what’s legal not what’s right. And I’ll stick to what’s legal… I’m not God. The currents and eddies of right and wrong, which you find such plain sailing, I can’t navigate. I’m no voyager. But in the thickets of the law, oh, there I’m a forester.”

Roper, wrote Bork, “would not be appeased and he leveled the charge that Moore would give the Devil the benefit of law.” Then Bork quotes the following lines:

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you -- where would you hide, Roper, the laws all being flat? …This country’s planted thick with laws from coast to coast -- man’s laws, not God’s -- and if you cut them down… d’you really think you could stand upright in the winds that would blow then?… Yes, I’d give the Devil benefit of the law, for my own safety’s sake.

Bork concluded by saying of giving anyone the benefit of the law -- specifically the Constitution:

It is a hard saying and a hard duty, but it is the duty we must demand of judges. 

And so it is.

As America bids farewell to Robert Bork -- a good man of great decency and class, a man with a brilliant legal mind and the ability to make his case -- it is finally time to rewrite Ted Kennedy’s famous speech. To say, simply: 

“Robert Bork’s America is a land in which the law is the Constitution of the United States.”

Period.

And amen.

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About the Author
Jeffrey Lord is a former Reagan White House political director and author. He writes from Pennsylvania at jlpa1@aol.com.