The War Against Robert H. Bork
It ended about as well as it had begun. On Thursday, October 22, the White House decided that it was time to terminate the two-day-old Senate floor debate over the nomination of Judge Robert H. Bork to the Supreme Court. A pro-Bork Senator phoned the judge and gave him a message: the debate now looked as if it would be so long and bitter that Senate Majority Leader Robert Byrd was threatening to cut it off and not resume it again for quite a while.
The meaning was clear. An extended postponement would keep the seat of recently retired Supreme Court Justice Lewis Powell, Jr. unfilled for a long time. If Bork persisted in his candidacy, it would be his fault that the Court would be unable to function at full strength.
Bork replied, predictably, that he did not want to bring any harm to the Supreme Court. A few more days would suffice, he said, to bring the debate to an orderly conclusion. That evening the leadership of the Senate began announcing to the press that Bork had given them the signal to end the debate and vote the next day. On Friday, at 2:00 P.M., the Senate rejected Bork’s nomination by a vote of 58-42.
Thus pro-Bork and anti-Bork politicians worked together at the end to hustle the Bork debate off the public stage as quickly as possible. Well they might. The war against Robert Bork showed the modern American Left at its ugliest, and the response by pro-Bork forces showed the Right at its most impotent.
To defeat Bork, the Left spent a huge amount of money—$10 to $15 million—on a negative political campaign of a size wholly unprecedented in the history of American judicial selection. They could not have mounted such a Herculean effort had they not hated Bork with a special venom. And indeed they did hate and fear him intensely, because of the special role he had come to play as a conservative in this country’s intellectual politics.
For American politicians, the presidential election of 1980 may have been about the usual political coin of patronage and congressional seats. For conservative intellectuals concerned with public policy, however, the issue was different. In the years approaching 1980 they had been speaking and writing with increasing vigor in fields from foreign affairs to regulatory policy, but in various ways they were still being denied entry into the fellowship of the cultivated. Surely, they thought, Ronald Reagan’s victory in 1980 would change all that.
In most important respects this expectation proved to be wrong. When it came to the legal profession, for instance, the Reagan administration had real power available to it because of its control over the appointment of judges. Moreover, the administration actually used its power. Yet one can gauge the effect of all this Reaganite political force on our legal culture by observing the ever more luxuriant types of radicalism now thriving at the country’s elite law schools.
If anything, losing the federal courts piece by piece made many people on the Left, whose views were so much out of political fashion, not chastened but bitter. In retrospect it is no surprise that this should have been so. During the early and relatively energetic Reagan years, these people had a great practical need of the courts to protect them from the President and the Republican Senate on issues from the environment to abortion. Even more important was the symbolic meaning of all the new, relatively conservative judges appointed by Reagan. Liberalism, which had once prided itself on being the party of the people, had in recent years been losing popularity and had therefore increasingly looked not to Congress but to the judiciary as its special preserve. Having come to think of the courts as in effect belonging to them, liberals were all the more disconcerted and threatened by the new conservative judges of the Reagan years.
Worse yet, liberals could not successfully charge that the Reaganites were destroying the quality of the courts by making inferior appointments. The Reagan administration by and large followed prevailing standards in the matter of judicial qualifications. It did not flood the courts with unfit judges. With very few exceptions its appointments were respectable, and some were truly impressive.
In response to this situation, important sectors of liberal opinion began undermining the idea of the apolitical Supreme Court, the very principle that liberalism had once defended so vigorously. When a prominent liberal law professor, Laurence H. Tribe of Harvard, argued in God Save This Honorable Court (1985) that Supreme Court appointments had never been anything other than grossly and patently political, he was merely dressing up and codifying the changing liberal fashion.
There is irony here. Twenty years ago at the Yale Law School, another liberal professor, the late Alexander M. Bickel, was teaching his younger colleague Robert Bork about the virtues of judicial restraint. Judges, according to Bickel, should be chosen non-democratically but should behave from that point on with great deference toward the decisions of democratically elected officials. In this Bickel was speaking from the mainstream tradition of liberal thought. By the time we arrive at the view of the liberal Professor Tribe, we are hearing that judges are chosen through politics and should be given very wide license to override the legislature in the name of their own conception of justice.
In 1986, when President Reagan nominated the very conservative Judge Antonin Scalia to the Supreme Court, there was no significant outcry from liberals. Scalia, the commentators explained at the time, was the first Italian American to be named to the Court. He had a base of political power in the Italian-American community. With his Catholicism and his many children, he was untouchable. In comparison with the frank cynicism of this kind of talk, the vague old idea of a “Jewish seat” or a “black seat” was a genteel anachronism. But the other side of the coin was soon to show itself. If a controversial conservative candidate was untouchable because he had an outside constituency, with a similar candidate who had no such clout—a candidate like Bork—it would be no holds barred.
Long before Bork’s nomination this year, liberals had begun to develop a rationale for challenging just such a candidate, even one (like Bork) of the highest quality. Still, beyond the general arguments there was something special about Bork that simply drove his opponents into a frenzy. As Linda Greenhouse of the New York Times put it, “a kind of metaphysical shudder . . . ran through the liberal community” when Bork appeared clearly on the horizon. But why? The best way to answer this question is to turn it on its head and ask why conservatives were so enthusiastic about putting Bork on the Court.
Conservative admirers of Bork had pushed for his nomination from the very beginning of the Reagan administration. When he was passed over for Scalia, there was among conservatives attentive to these matters a sense not just of disappointment but of injustice. These people thought highly of Scalia, but they viewed Bork as in effect a holder of title to one of the nine seats on the Court.
This was not because they saw Bork as a predictable right-winger. To be sure, he had the “correct” conservative views. He was a proponent of judicial restraint. He did not like the Court’s reasoning in Roe v. Wade, the decision legalizing abortion. As a judge on the District of Columbia Court of Appeals, he had refused to rule that a man had a right of privacy allowing him to practice homosexual acts in the Navy. He was the author of a book, The Antitrust Paradox, which rigorously criticized some of the grounds on which the government habitually brought antitrust prosecutions.
But to conservatives Bork was far more than a collection of views. He had become a symbol of the intellectual force of contemporary American conservatism and an exemplar of its success in challenging previously dominant liberal ideas.
It was appropriate that he had come out of the University of Chicago. Among American academics, those who defend free markets and mistrust government regulation have traditionally been treated like moral lepers. As a result, most professors with views like these have written their books and articles cautiously, holding caveats and qualifications in front of them like shields against social opprobrium. But the Chicago intellectuals by whom Bork was influenced not only defended the free market but defended it frontally. They wrote bluntly. They were not shy about debating those with whom they disagreed. They were not apologetic. They did not act guilty.
Neither did Bork. His writings made no attempt to conceal or soften their own message. He was willing to say what he thought and just as willing to take it back if he concluded he had been wrong. He was unashamed of his conservative politics.
All the more amazing was it, then, that he should have risen to undisputed eminence as a scholar at one of the great bastions of liberal jurisprudence, the Yale Law School. He had won at the game whose rules had been established by his ideological enemies, and he had done so without genuflecting toward them and their views.
In short, the symbolic significance of the Bork appointment to conservatives lay in the challenge it represented to the liberal monopoly over the great academic institutions and even over the idea of intellectual merit itself. It was for the same reason—and not because of some argument over legal doctrines or the balance of the Court—that liberal organizations fought against his nomination as if their very lives depended on defeating him.
During this fight, anti-Bork activists and commentators often pointed out that there had been politics in the process before. Some significant fraction of Supreme Court nominees, we kept hearing, had been rejected for political reasons over the course of American history. We were supposed to conclude from this that the campaign against Bork was a normal, and therefore legitimate, event.
It was a mark of the climate surrounding the fight that people so often quoted this disingenuous argument as if it were weighty and telling. In fact, there had never been anything remotely resembling the scale of the national media campaign that was launched against Bork. Nor was there ever anything like the degree to which constituency interest groups were organized to put sustained pressure on individual Senators.
There is much that the public will never know about the internal operations of the great anti-Bork campaign. Federal law does not require any substantial disclosure by the sorts of organizations through which the campaign’s money flowed, and the organizations themselves are not notably forthcoming about their finances. But we do know some things, because even before the final Senate vote, the anti-Bork organizers started celebrating their victory in print.
Thus we learned from a story in the October 11 Boston Globe, based on interviews with Senator Edward M. Kennedy and the liberal lobbyist Anthony Podesta, that soon after Justice Powell announced his retirement from the Court, Kennedy’s staff had prepared the draft of a speech about Robert Bork. Then, when Bork was named, Kennedy was ready to go. His speech raised what would become the major theme of the campaign: that Bork stood “outside the mainstream of American constitutional jurisprudence.” It also made specific accusations: “Judge 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, . . . and the doors of the federal courts would be shut on millions of citizens.”
These accusations were scurrilous, but the scurrility was calculated: only language of this brutality, it was thought, would arouse the fears necessary to get the relevant interest groups moving.
Shortly after delivering this speech, Kennedy met with Senator Joseph Biden, chairman of the Senate Judiciary Committee and then still a presidential candidate. In the fall of 1986, Biden had said that if nothing were found amiss in Bork’s background, “I’d have to vote for him.” But after meeting with Kennedy and then with a delegation of civil-rights activists, Biden decided that he was against Bork after all. Indeed, he declared even prior to the hearings over which it was his job to preside that he would lead the fight against Bork. As for his 1986 statement, Biden explained that he had meant only that he would vote for Bork to replace another conservative justice. Since Lewis Powell was a “moderate,” Bork was not an acceptable substitute.
Biden and Kennedy now met with two other Democratic Senators—Howard M. Metzenbaum of Ohio and Alan Cranston of California—to plan strategy. The first thing they had to do was buy time to launch a media campaign and permit the interest groups to organize. Therefore the highest priority, they decided, was to make sure that there were no hearings on Bork’s confirmation until after the Senate’s August recess. Nevertheless, within days after this private meeting, Biden publicly pledged to the Washington Post that he “would not engage in any tactics to delay the hearings.”
Taking advantage of the delay Biden had promised not to engineer, Kennedy worked the phones tirelessly, rousing organization heads by telling them that the Bork nomination was a major disaster for civil liberties and a major event in the lives of those who cared about such things. He also phoned the whole of the AFL-CIO executive committee and helped to persuade them that action against Bork was absolutely necessary.
Early in July Benjamin Hooks, executive director of the NAACP, announced that his organization’s coming conference would be focused on the single subject of defeating the Bork nomination. “We’re trying to contact all the Senators—some once, some ten or twelve times,” he said. At the convention, Hooks declared that he was working to get other civil-rights organizations to do the same. Around the same time, the convention of the National Education Association voted to join the fight against Bork. The National Abortion Rights Action League announced that its convention would concentrate on the Bork struggle. Eleanor Smeal, the president of the National Organization for Women, said that NOW would organize rallies and establish telephone banks for generating mail to key Senators. Later, in August, anti-Bork activists from the Alliance for Justice and the Federation of Women Lawyers buttonholed attorneys and held seminars on Bork at the convention of the American Bar Association.
The direction in which these efforts flowed is worth noting. First anti-Bork activists—academics, association officials, congressional staffers—decided what was wrong with Bork. Then a key Senator, adopting their ideas, launched the anti-Bork campaign. Next, anti-Bork Senators got together to delay the processes of confirmation, so that pressure from outside organizations could be mobilized. Finally, word went out to the members of these organizations that Robert Bork was a monster, and that they must add their voices to the pressure already being brought to bear on Senate deliberations.
Not even all this would have been enough, however, without reinforcement from a media campaign of a scope usually seen only in a nationwide political race. The anti-Bork campaign used polling and statistical analysis to find out which themes would affect people the most, which Senators were the most vulnerable, and where advertising should be targeted. Guided by this research, anti-Bork organizations bought full-page advertisements in newspapers and ran TV spots in major markets.
Different organizations put their names on different pieces of the effort. Planned Parenthood sponsored one big newspaper ad. The National Abortion Rights Action League ran another. But talking about the media campaign against Bork means talking most of all about People for the American Way (PFAW). And talking about PFAW means talking about its founder and leader, the Hollywood producer Norman Lear. PFAW’s operating style reflects Lear’s correct perception, back in 1982 when the organization was born, that the Left was in political trouble partly because the Right had appropriated all the symbols of patriotism. Lear aimed to get some of them back, and PFAW—from its red-white-and-blue logo on down—pursues liberal goals by presenting them as established elements of the American consensus.
The big anti-Bork TV commercial that PFAW ran was an example of this approach. The spot was narrated by Gregory Peck, whose screen image is one of rectitude and whose voice we all trust. “There’s a special feeling of awe people get,” intones Peck in the commercial, “when they visit the Supreme Court of the United States, the ultimate guardian of our liberties.” As Peck speaks, a traditional four-person nuclear family, with faces of a sort we have rarely seen since Leave It to Beaver, is walking up the Court steps. Father points the building out to the children. Peck goes on. Bork should not be on the Court, he says: “He defended poll taxes and literacy tests, which kept many Americans from voting. He opposed the civil-rights law that ended ‘whites only’ signs at lunch counters. He doesn’t believe the Constitution protects your right to privacy. And he thinks freedom of speech does not apply to literature and art and music.” The commercial ends with the family in profile, gazing reverently at the Court. A gentle wind blows through their hair. The camera focuses lovingly on the cherubic face of the youngest. The End.
This entire spot was composed of false innuendoes and outright lies. For example, Bork never defended poll taxes or literacy tests. He said the Equal Protection Clause of the Constitution was the wrong rationale for the Supreme Court to have used in striking down a $1.50 poll tax in Harper v. Virginia Board of Elections. He explicitly indicated that he was able to reach his conclusion only because the case did not involve racial discrimination. He also made it quite clear that he thought the tax might well be unconstitutional on other grounds. To turn all this into a defense of poll taxes was slander.
The PFAW accusation on the subject of privacy was just as bad. The truth is that Bork as an author has written and Bork as a judge has ruled that there are indeed rights of privacy in the Constitution. What he does not see in the Constitution is a unitary and generalized right of privacy, as it has been defined by Justice William O. Douglas. The PFAW ad deliberately and mendaciously confused this distinction.
The ad contained more such errors and lies, as did the anti-Bork campaign as a whole. For the record, the following charges made against Bork in various ads were not true: that, according to Bork, women can be forced to choose between being sterilized and losing their jobs; that, according to Bork, women have no “reproductive rights”; that Bork has voted with business in 96 percent of “controversial cases” before him on the Court of Appeals.
All these and many other lies provided the fuel for the mobilization campaign.
One of the major targets of this campaign was the Southern Democrats in the Senate. In the past such Senators would surely have been in the pro-Bork camp because of their relatively conservative views. But the anti-Bork strategists believed from their data-gathering that, this time, the minds of a number of Southern Democrats might be changed by the great persuader: electoral calculus.
There were five new Southern Democrats in the Senate. Some of them, went the argument, had literally gained their seats because of their winning margins in black areas. That is, if the black-area votes were subtracted from the winners’ total, the winning numbers became losing numbers.
The “black vote” argument was not so open and shut as lobbyists and commentators made it seem. The new Democratic Senators from the South had indeed benefited from the black vote. But they had benefited from other electoral trends as well. John Morgan, who helped wage Republican Henson Moore’s losing Senate campaign in Louisiana in 1986, has pointed out that the Democratic winner, John Breaux, is a Cajun. Breaux could not have won over Moore just by winning black votes; he won because he also gathered normally Republican votes from Cajun areas. In Alabama, Democrat Richard Shelby could not have defeated Jeremiah Denton in 1986, black vote or no black vote, unless significant numbers of urban and suburban whites had found Shelby an acceptable alternative to the eccentric Denton and defected from their normal Republican voting pattern. In Georgia, a good turnout among suburban Republicans in the Atlanta area, instead of the poor turnout that actually occurred, would have erased Wyche Fowler’s victory margin over Mack Mattingly. And in North Carolina, Terry Sanford benefited in 1986 from his opponent’s loss of a Republican’s normal share of conservative “Jessecrats” (Jesse Helms, that is).
None of this means that black voters were not important to these men. But before the anti-Bork campaign started, the situation did not seem so predetermined. As late as the end of July, administration vote counters were listing most of the Southern Democrats as potentially pro-Bork. At this point the “black vote” factor did not seem to have irreversibly locked the Southerners up on the other side. But anti-Bork campaigners had an interest in having the starkest version of the “black vote” argument believed, the version that would leave each Senator the least room for freedom of choice.
Nationwide advertising thus heavily emphasized the alleged threat to minorities posed by the Bork nomination, creating pressure on Southern Senators from black organizations. The advertising also made pro-Bork voters uneasy and less likely to exert a contrary influence on their Senators.
But where was the counter-pressure from the Right? At first, spokesmen for conservative organizations promised that their side would match whatever the liberals did. Early newspaper stories on the liberals’ organizing efforts always reported that the conservatives were organizing, too. This was true: conservatives and their organizations sent plenty of pro-Bork mail to the Senate, probably more than the other side did. Nevertheless, by the time the hearings began in September, no one pretended any longer that the pro- and anti-Bork sides were evenly matched in effort or pressure.
The main reason the conservative groups were not in evidence was that early on, representatives of major right-wing organizations meeting with the President’s operatives were given the clear message that they should keep a low profile on the Bork issue.
Later, as the fight was nearing its finish, bitter stories started circulating in the pro-Bork camp about just why the administration had pulled its punches in this way when it was obvious that the Left was launching a massive assault. One such story was that Bork was seen by the senior White House staff—most of whom had, to say the least, no enthusiasm for him—as a political liability, to be confirmed quietly or not at all. Consequently, the story continued, when the trouble started the President’s men did almost nothing to stop Bork from twisting slowly in the wind.
It is certainly true that no senior White House official—except, sporadically, the President himself—showed notable zest for the Bork fight. But when Bork’s managers waved the right wing away, they were also operating from a deliberately “low key” strategy for the confirmation.
The main charge made by the Left against Bork, as his political managers saw, was that he was “out of the mainstream.” One way of viewing this “out of the mainstream” charge was merely as a screen for the major battle the liberals were about to wage. Instead, the managers took the charge at face value, as meaning what it said, and they decided on a strategy to refute it. It is too much to say that they set out to “repackage” Bork as a “moderate” (though it was indirectly suggested to him that he shave his beard). But they did set out to show that Bork was not a monster or an extremist. For this, the last thing they needed was incendiary statements from the Right. Instead, they said, their arena would be the Senate Judiciary Committee hearings, where fairness and reason could prevail. Their chief weapon would be Bork himself.
The tone of the hearings, when they began, was indeed different from the atmosphere on the outside. Chairman Biden boasted that not a single witness requested by the Bork forces was refused permission to testify. The Senators heard dignified language from lawyers and eminent persons of all types. Absent was the interest-group frenzy that the media campaign displayed—and even more conspicuously absent were the anti-Bork interest groups themselves.
Usually, on so controversial a matter as Bork, organizations and associations concerned with the issue actively try to get onto the witness list, so that they can have their moment of glory before the television cameras. A TV appearance gives them prestige, visibility, and an enhanced capacity to raise funds. But in this case anti-Bork organization leaders realized that testifying to the committee would be not so much an opportunity as a risk.
These groups had said a lot of things about Bork. But if their leaders became witnesses, pro-Bork Senators would get to ask them questions. The tables would be turned. It was safe enough to have a pro-Bork Senator dueling verbally in the hearing room with an anti-Bork law professor. The debate would be about ideas, and the professor could take care of himself. But when an organization leader sat down to testify, other kinds of questions could arise. What was the membership of his group? What were its general aims? What were its views of abortion or religion or crime control? Where did its money come from? How much money had it raised and spent in the campaign? What activities had it engaged in?
In short, if these groups went in to testify, pro-Bork Senators could make them and their campaign the issue. The whole strategy of the campaign was to submerge talk of the interest groups’ particular aims and speak only in terms of values that were consensual: not abortion but “privacy,” not “conservative” but “out of the mainstream.” It was best not to testify.
This self-effacing tactic left Bork as the undisputed center of the hearings. His White House managers’ confidence in him on the eve of the hearings was not unreasonable. They saw quite correctly that Bork was a witty and genial man, wholly without the intellectual rigidity that is the mark of a dangerous ideologue. They thought that after a few days of testimony by him, it would be impossible for anyone to charge in good faith that he was extreme, intemperate, or eccentric. In this they were right.
Yet after the hearings, as the Bork nomination floundered, the organizations that had worked to bring him down said over and over again: “We didn’t defeat Judge Bork. Judge Bork defeated Judge Bork.” Conservatives had a different lament about the hearings: Bork had been made to sound too moderate, and he had therefore failed to rouse to action the people who were his natural supporters.
Both charges were false. In the hearings Bork did just about all that he could have done on behalf of his own nomination.
His testimony lasted for four days of usually hostile questions. The pressure of the situation was enormous and deliberate. Bork’s opponents were hoping that he would crack—that he would admit to some scandalous behavior in his past, for instance, or that he would say something intemperate enough to sink him. But they did not succeed in driving him into any specific misstep that they could use against him. This was extraordinary, given the length and intensity of the questioning. Moreover, Bork set a general tone in his testimony that was uniformly high, civil, and—irrelevant though it came to seem—learned.
But if the hearings were to have overcome the force of the anti-Bork campaign outside the hearing room, it was necessary for Bork to make large numbers of Americans feel an emotional connection to him, one strong enough so that they would speak up about it and move their Senators. This Bork did not do.
He did not sound as blunt as many conservative activists would have liked. Partly, no doubt, this was the result of a deliberate decision on his part. What is also true is that Bork clearly does not have unqualified views about some of the subjects that conservatives wished he would tackle. Moreover, Bork was and is a sitting federal judge. His tone was bounded by the traditional standards of the profession. He sounded—judicious.
Those who had hoped that Bork would inspire people in something like the way Oliver North had done in the Iran-contra hearings overlooked the fact that Bork simply did not have the personal equipment for the job. But even if he had possessed this equipment, it would have been wholly inappropriate for him to talk like an enthusiast for one political perspective or another. Bork was nothing if not forthcoming in the hearings. He answered types of questions that judicial candidates had never consented to answer before. But to make an impact through TV that might have offset the force of the campaign against him would have required behavior that Bork could not and should not have engaged in.
The hearings had their high-toned moments and their low ones. When Senator Kennedy was on, he would typically read a hostile question off a sheet that his staff had prepared for him. Bork would parry. There would be a brief silence. Then, instead of responding to Bork or pressing him further, Kennedy would rush along to the next prepared query as if he could not understand Bork’s answer.
Bork’s supporters laughed at this, but during one patch of the questioning, Biden kept passing Kennedy a Kennedy-Bork scorecard. “12-0,” it read, then “18-0,” then “24-0,” then “30-0 if he keeps on.” Both Kennedy and Biden knew that the point of the hearings was not to have a debate or to get any real answers to real questions. The point was to go through the forms of the process while making sure above all to preserve the air of controversy surrounding the nominee.
The majority report that the Senate Judiciary Committee finally produced on the hearings showed unmistakably that this had been the intent behind the proceedings. The report dealt with Bork’s views on various subjects—privacy, executive power, judicial restraint, civil rights, antitrust, women’s rights, and the like—and found them unacceptable in each category.
There are respectable arguments to be made for views other than Bork’s on all these topics. But the majority report almost never offers them, since its aim is not to debate Bork in good faith but to make the inherently dishonest case that Bork is outside the American mainstream. In the section on privacy, for instance, the majority calls Bork an extremist for disagreeing with Justice Douglas’s concept of privacy in Griswold v. Connecticut. The report gives no sense of the fact that there are prominent scholars on both sides of a vigorous debate over this issue. More interesting, the section makes its whole case on the subject of privacy without discussing the issue that for many organizations was at the heart of the anti-Bork campaign—that is, abortion. It is impossible to think that this central but controversial question was omitted by accident.
The report uses language like, “Prior to the hearings, Judge Bork did not include women within coverage of the equal protection clause,” which is simply not true. The report charges that Bork’s views on executive power place him “well outside the mainstream of legal thought” when his general views on the subject are thoroughly conventional. And so on and on and on.
More pervasive than these distortions is the anti-intellectualism that forms the whole basis of the report. In almost every one of its arguments the document’s major premise is that in order to describe, categorize, and judge a legal scholar’s views, one must above all know what ethnic, gender, and interest groups have been advantaged or disadvantaged by his decisions. Process is nothing; only results count.
If the majority on the Senate Judiciary Committee knew better than to treat the hearings as a meaningful debate, so did the press. After the hearings, Bork’s opponents charged that it was his own performance before the television cameras that did him in. The proof of this was in the polls showing that Bork sank in popular approval after he had testified. People had seen Bork testify and decided they did not like him.
This was another of the lies of the anti-Bork campaign. The truth is that “people,” by and large, did not see Bork testify at all. The networks televised almost none of the hearings, and not even all public-television stations ran them. The vast majority of Americans never saw any substantial part of the hearings while they were taking place.
Instead, what most people saw of Bork in the hearings was what the networks and public television chose to present on the nightly news. The usual rules of broadcasting applied. The excerpts taken out of the testimony were tiny snippets of the larger give-and-take. Viewers rarely got to see answers of any length or complexity. Sentences were selected for presentation according to what a program’s producers judged to be the essence of Bork’s philosophy or the day’s important trend. A demagogic question and a thoughtful answer were likely to show up on the evening news—and, less defensibly, in the print media—as, “Judge Bork today denied the charge. . . .”
But even beyond the limitations of the medium, press treatment of Bork was extraordinarily lopsided. S. Robert and Linda Lichter’s Media Monitor followed press coverage of Bork from his nomination on July 1 until the day he made the surprise announcement that he would not withdraw. Here are some of the things they found: The press quoted twice as many opponents of Bork as supporters, and nearly two-thirds of the judgments they cited were negative. Among legal scholars quoted on Bork, nearly three-quarters said negative things. The sources split evenly on his abilities, but 82 percent of those who talked about his philosophy criticized it.
Even more important, coverage became sharply more negative over time, especially on television news programs. Before the hearings, assessments of Bork by leading news organizations were balanced more or less evenly. But the figure was only 38-percent positive during the hearings and dropped to 28 percent afterward. After the hearings, not a single positive judgment of Bork was broadcast by TV news.
Thus most people got their information not from the hearings but from news sources whose bias in this instance was clearly more than accidental. Yet journalists simply repeated the line that it was Bork who had killed his candidacy in the hearings. “Bork Was His Own Worst Enemy,” ran a particularly explicit headline at the end of October in the Washington Post. The circle of influence was complete.
After the hearings, a number of Senators who had decided to vote against Bork started coming forward at conveniently dramatic intervals to announce their intentions. To the press, the anti-Bork momentum seemed irresistible. So these announcements were prominently featured in the news, and the momentum increased. Soon the journalists had other predictable elements of the story to report: top White House aides were privately conceding defeat. President Reagan was saying, kiss-of-death style, that it was up to Bork to decide whether or not he wanted to withdraw. Friends were trying to persuade Bork to back out, on the ground that forcing an actual vote in the Senate would only be a personal embarrassment and give more publicity to his defeat. It was said, falsely, that Bork’s wife and family were begging him to quit. Finally, in anticipation of his imminent withdrawal, the press even mounted a “death watch,” staking out Bork’s home so that he could not come or go without their notice.
But almost all the Washington insiders had underestimated Bork’s strength and that of his family. Furthermore, by this point Bork’s enemies had managed to vilify him so much that they could do his reputation no further harm even if he decided to fight on to the end. The idea of staying in the contest became thinkable. Staying in, when everyone knew it was so much easier to quit, would make it clear that Bork was upholding the principle that the Senate must be accountable for this most important of actions. Indeed, some in the federal judiciary urged Bork to take the principled route and finish the fight, because they were appalled at what the anti-Bork campaign was doing to the judicial selection process in general.
On Friday, October 9, Bork went to the White House—to withdraw, the press was certain. But then came one of the few unplanned moments of the whole affair. Bork asked the President whether he would get support from the White House if he stayed in the fight. The President, promising what he could not deliver, said yes. On the basis of Reagan’s answer Bork walked into the White House press room and said he was staying. For once, the journalists gathered in the press room were truly surprised by something that happened there.
During the period between that day and the final vote on October 23, a group consisting largely of attorneys, acting from a combination of admiration for Bork and anger at the nature of the campaign against him, launched a last-ditch effort. They had several goals in mind: to save the Bork nomination if possible, to save Bork’s reputation in any case, and to expose what had been done to him and to the federal judiciary. Leonard Garment, a Washington lawyer, was one of the leaders (and I myself joined him in the effort). Another was a New York attorney, Michael Armstrong, like Garment the head of one of the professional committees that exist in many states to make recommendations on the selection of federal judges. In a parallel effort, conservative groups like the American Conservative Union and the Free Congress Foundation, which had been working with little administration encouragement, produced final mailings and advertising.
The Washington-New York effort aimed at persuading Senators that the anti-Bork campaign had been so dirty and full of false information as to have seriously misled them. Because of this, went the argument, Senators should not commit themselves to voting one way or another on the Bork nomination until they had heard a full debate on the Senator floor. Newspaper ads were placed to demonstrate that the campaign had been deceptive and a threat to the independence of the federal judiciary. Visual aids were prepared for those Senators, such as Judiciary Committee members Orrin Hatch and Alan Simpson, who had supported Bork staunchly and were going to lead the pro-Bork side of the debate. A team of attorneys in New York drafted detailed replies to each section of the Judiciary Committee’s majority report, in an attempt to show that the report was so intellectually dishonest and of such low quality that it was itself a scandal in the history of Supreme Court nominations. (Because the debate was cut short, only three of the ten replies were delivered to the Senate before the vote.)
This last-ditch effort got a boost from the emergence of the story of John T. Baker. Baker was a professor at the law school of the University of Oregon and a former dean of the law school of Howard University. He had been scheduled to testify in favor of Bork. Baker was a black who, because of his former position at Howard, could not be dismissed as someone cut off from the black community. His appearance might have been of significant help to Bork’s case. But at the last minute, Baker changed his mind and backed out.
After the hearings, Baker told friends that he had changed his mind about testifying because he “couldn’t take the heat.” Just before he was scheduled to testify, he said, he had received a call from a woman he had known for some time, Linda Greene. She was black, a lawyer, and a Metzenbaum appointee on the majority staff of the Senate Judiciary Committee. She told Baker that if he appeared before the committee, he was going to be humiliated. She already knew the questions the staff had prepared, and they had little to do with Baker’s views about Bork. Instead, they were questions about Baker’s own ability and character.
The majority was going to charge Baker, before the TV cameras, with being unqualified to talk about the constitutional issues that formed the crux of the Bork debate. What is more, the majority was going to dredge up the story of why Baker had left the deanship of Howard Law School. Baker had resigned from this post publicly charging that the university’s administration would not permit him to establish and enforce the professional standards that were necessary if Howard was to have a respectable law school. Some days later, the president of Howard, James Cheek, charged that Baker had really left because Cheek would not give in to his extortionate demands for increased salary and benefits. If Baker testified, warned Greene, he would be exposed to the embarrassment of this controversy once again.
Baker phoned the White House and canceled his appearance.
Although Greene insisted that she had acted out of no motive but sisterly love, her exchange with Baker was, on the face of it, intimidation of a witness, and the story probably did succeed in raising some doubts about the legitimacy of the anti-Bork campaign. Nevertheless the last-ditch effort failed. This was not surprising; the attempt was a long shot in the first place. If there was to have been any chance of switching a vote or two to “undecided” and reopening the fight, it was necessary that everyone think the pro-Bork forces were playing to win. This condition was never met. The White House explicitly refused to entertain—even as a tactic—the possibility of reversing the trend against Bork. Named and unnamed White House sources kept emphasizing to reporters that the Bork battle was lost. Senate Minority Leader Robert Dole did the same. When Vice President George Bush began making spirited pro-Bork speeches, he was stopped. The Justice Department provided generous tactical help but did not want the campaign to go beyond a set of narrow bounds.
There were respects in which the final pro-Bork effort was easier than anticipated. Volunteers turned out to be available. Money, contrary to earlier predictions by Bork’s White House managers, was available as well. Outside groups, far from being standoffish, as they had earlier been described, were willing to help. The substantive case was even stronger than had been anticipated. But all these factors were as nothing against the determination—on the part of those who were tired, who wanted to avoid further confrontation, who worried about the next battle, or who had developed a psychological or ideological stake in failure—that the fight be over.
In the week of the final debate, 23 judges of the Second Circuit, the country’s most prestigious, signed a petition deploring the nature of the campaign that had been waged against Bork. Whatever one’s views of the nominee, the petition was an event that should have been of major interest to any journalist purporting to be concerned or knowledgeable about the American judiciary. To have so many judges putting their names to a public-policy document of this sort was highly unusual in the history of the federal courts and a clearly significant result of the Bork affair. But the reporter for the New York Times had to be badgered into even mentioning the event at the very end of a long story on the confirmation fight. Norman Lear’s campaign in the South had shaped Bork’s fate, but it was attitudes like this that sealed it.
Bork’s opponents said over and over that Reagan himself had been the one to politicize the process, by calling for law-and-order judges in his political speeches. Yet the Reagan administration, though it certainly did appeal in its campaigns to popular frustration with “soft” judges, accepted conventional constraints when the time actually came to name people to the bench. Indeed, the big fight over the propriety of the administration’s judicial selection process had been about whether Justice Department questioners should be allowed to ask prospective nominees how they felt about Roe v. Wade. This question is as nothing compared with all the things that were asked by the Judiciary Committee of Robert Bork.
Bork’s pursuers also kept insisting that rejecting Court nominees for political reasons was as American as apple pie. It is possible that some of them believed this. Yet in recent times, the rejections we call “political” have been hung on some nonpolitical peg. When Bork’s name went to the Senate, that body had not rejected a nominee for seventeen years—not since G. Harrold Carswell (nominated by Richard Nixon). There had been politics in that rejection, but opponents had also argued successfully that Carswell presented a serious problem of competence. A little earlier there had been Clement Haynsworth, also nominated by Nixon, whose rejection was also politically motivated. But opponents managed to discover a conflict of interest in Haynsworth’s performance on the bench. Similarly with the rejection of Supreme Court Associate Justice Abe Fortas, nominated by Lyndon Johnson to be Chief Justice. In that case, which anti-Bork partisans cited as a justification for their campaign, opponents could and did point to the issue of Fortas’s participation in politics while on the bench, the problem of lecture fees paid to him out of earmarked funds collected from businessmen, and his refusal to go before the Judiciary Committee and answer questions about these matters.
There was more at work here than hypocrisy. As long as an administration feels compelled to pay obeisance to nonpolitical standards like character and competence, there are limits to the types of people it can pick as judges. Political congeniality cannot be the only criterion. As long as the Senate opponents of a Supreme Court nominee feel compelled to find a nonpolitical reason for opposing him, they acknowledge that the confirmation process should take place free of the intervention of partisan politics. As long as they make this acknowledgment, they accept very definite limits on the sorts of political arguments they can use and the kinds of political pressure they can apply.
To be sure, Bork’s opponents tried very hard to find a conventional “hook” on which to hang him. They tried to disinter the Watergate episode known as the “Saturday night massacre,” in which then-Solicitor General Robert Bork stayed on to become Acting Attorney General after President Nixon had fired Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus. Witnesses were produced from Nixon’s Department of Justice who testified to the Judiciary Committee that Bork had been insufficiently zealous in finding a new special prosecutor to replace the recently dismissed Archibald Cox. The charge was false, and the evidence to disprove it was available to the committee. Elliot Richardson and Archibald Cox themselves had said publicly that Bork had acted in a wholly honorable fashion. This did not prevent the committee from staging its Watergate show. But it did keep the Watergate charge from being very useful as a tool against Bork.
The opponents also surfaced allegations that Bork was a tax delinquent, that he was a drunk, and that he had deceived a fellow judge in the writing of an opinion. From the Hill came rumors that Bork’s wife Mary Ellen did not believe that the Holocaust had ever occurred. But nothing took. There was no scandal. During the course of the hearings, Chairman Biden admitted aloud that there simply was no significant blot on Bork’s integrity.
But—and here is where one of the crucial lines was crossed—the opponents would not stop. They went ahead to oppose Bork on purely ideological grounds. They did not do this honestly, by saying that they hated Bork’s ideas. Failing a scandal of the usual sort, they decided to present Bork’s philosophy as itself a scandal. When they said he was no true conservative, or that he was extreme and outside the mainstream, they were saying that Bork’s were not the sort of ideas that should be met through the normal give-and-take of serious argument. They were saying that Bork’s views were beyond the pale, that they were threats to the American system and should be treated as such rather than listened to with seriousness or respect. If the opponents had only said that Bork’s ideas were wrong, they would have had to muster sustained arguments against them. But if his ideas were scandalous, then their mere existence was enough to disqualify him from the Court.
Most of the scandals that the opponents discovered in Bork’s views were sheer inventions. Even the scandals they claimed to have discovered in his early writings, before his career as a judge started, were not genuine. One of their best-known examples was a 1963 New Republic article in which Bork had called the principle of the pending Civil Rights Act of 1964 one of “unsurpassed ugliness.” In citing this, the anti-Bork forces meant, of course, to show that Bork had opposed the idea behind one of the most basic of civil-rights documents. Here they were guilty of yet another misrepresentation.
In his New Republic article Bork had quoted Mark deWolf Howe condemning segregation as one of the “ugly customs of a stubborn people.” Bork agreed: there could be no doubt about the “ugliness of racial discrimination.” But he worried that parts of the pending act could turn into another sort of unnecessary coercion, and it was this that Bork called a principle of “unsurpassed ugliness”—using the particular word “ugliness,” of course, as an echo of Howe.
Though Bork was overstating for literary effect, the reality here was simply not scandalous, especially in light of the fact that, as the New Republic’s liberal editors said in the same issue, many of its readers shared Bork’s worry. But there was something more important for the present case: Bork repudiated his 1963 view, publicly, fourteen years ago. Throughout the campaign against his nomination, Bork’s opponents, even if they mentioned that he had disavowed his earlier view, accorded it the same weight as if he were still committed to it.
At present Bork is an appeals court judge of acknowledged prudence. For years, though, he was a writer and a law professor. His obligation during those years was not to behave with maximum prudence. Quite the contrary. His duty was to follow his ideas where they took him, to spin out the implications with honesty and imagination, and then to apply the same honesty in admitting mistakes when further argument and evidence required him to do so.
As everyone recognizes, Bork took these obligations seriously—that is, he spoke honestly, assumed that his intellectual adversaries made their own arguments in good faith, and readily admitted he was wrong when so persuaded. Yet it was on the basis of these qualities that Bork’s opponents on the Left declared him unfit for the highest judicial office. In doing so they attacked the entire process by which intellectual life does and should go on.
The irony here is large. For a long time now liberals in America have denounced conservatives for anti-intellectualism and have represented themselves and the institutions they control, like universities and the courts, as the preservers and defenders of intellect. In the Bork campaign they acted with a contempt for intellect at least as bad in its way as anything that ever came out of the fundamentalist Right of the 20′s.
The anti-Bork forces would not have been able to make their anti-intellectual appeal decisive, though, were it not for the other line that they decided to cross: the line between the insider politics of judicial selection and the constituency politics of a national political campaign. No matter how fierce the politicking on the inside has been in the selection of federal judges, and it has sometimes been fierce indeed, the Bork campaign was different. Those who claimed that the media aspect of the campaign meant little, and that the important decisions were made by the Senate, were being either ignorant or disingenuous.
The achievement of the anti-Bork campaign was, first, to use the media to activate outside pressure groups on a large scale. Second, the campaign managed to bring this force to bear on Senators who then reached their decisions on the basis of factors that had never influenced them so powerfully before.
But, as Norman Lear has replied to his critics on this issue, what is wrong with that? Should we not be proud to see the American people making clear what they will and will not stand for on the Supreme Court? Is this not democracy in action?
The answer, which Americans should not have to have repeated for them, is that under the system designed by the Founders, judges are not supposed to be chosen by popular election. This does not mean that judges are to be fully insulated from democratic pressures. After all, they are to be selected by the President, with the advice and consent of the Senate. But the insulation must be substantial. According to the Founders, judges should not live in fear of losing their positions for making decisions that yield the “wrong” results from the point of view of one or another pressure group.
We have at various times been more or less respectful of this principle, but there can be no doubt that it has been at the base of whatever success we have enjoyed as a society under law. It is the failure to show the slightest bit of care or respect for this truth that makes Lear-type talk about “democracy” a national menace.
It will take years to undo the damage that the war against Bork has wreaked, if indeed the harm can be undone at all. There was a sense, though, in which those on Bork’s side of the case also incurred a substantial share of the blame. Since the 1980 election, many conservatives have tended to bask complacently in the false sense that the American electorate had won their fight for them. But the activists of the Left did not accept defeat and skulk off into a helpless silence. They pulled in their horns, solidified their bases in liberal organizations, waited for the appropriate target, then ran up the hill with a vast war whoop.
They were delivering a message: that the Left is no more tolerant than it was twenty years ago of ideas to the right of its own, and that its deepest hatred is reserved for public figures who champion those despised ideas with genuine intellectual skill. We are going to have another twenty years of ideological strife in which to remember the lesson.