In the fall of 1987, when it was looking more and more doubtful that his nomination to the U.S. Supreme Court would receive Senate approval, White House aides suggested that Robert H. Bork and his wife appear on the Barbara Walters television show.
”They had some nutty idea of humanizing me,” Bork said in an interview. ”I was offered all the talk shows. There was one that offered to let me choose the journalists who would question me.
”The Barbara Walters show wouldn`t have been the one I would have chosen, but the point is that if I`d wanted to campaign for the job, I could have easily done so. It might have made a difference. Then many more people would have heard what the record was and the facts were.”
The talk-show strategy may have indeed been a nutty and perhaps desperate idea, but there was certainly reason to do something, for Bork`s opponents on the political left were apparently having some success in portraying him as a right-wing fanatic who was a threat to overturn hard-won Supreme Court rulings on behalf of civil rights, free speech, the right of privacy, labor and abortion rights.
In addition, Bork`s four days of televised testimony before the Senate Judiciary Committee-even his beard came in for a senator`s disapproval-evidently hadn`t helped his chances and may possibly have made things worse.
”In order to understand my points, you`d have to watch the complete hearings. Most people got their news from TV clips on the evening news. And that would show the accusation and maybe the least effective part of my reply. And the polls began to swing,” Bork said.
In the end, the Senate would deny him a seat on the nation`s highest court by a vote of 58-42, the biggest margin of defeat for a Supreme Court nominee in American history.
”The experience was very hard on my family and me,” Bork said, speaking of his three grown children and his wife, Mary Ellen. ”But it has left no permanent scars, and I think we`re stronger and more outspoken for it.”
Bork was interviewed while in Chicago on a promotional tour for his new book, ”The Tempting of America” (The Free Press, $22.50), which is most emphatically the work of someone who doesn`t shrink from expressing strong opinions.
Throughout its 335 pages, Bork defines his social and legal philosophy, gives his personal account of the donnybrook over his nomination and delivers an unsparing attack on his adversaries, which include some of the most powerful organizations in the country`s liberal establishment.
Among the groups aligned against him, he writes, were the Leadership Conference on Civil Rights, Planned Parenthood, the NAACP, the American Civil Liberties Union, the National Abortion Rights Action League, the AFL-CIO, the National Organization for Women, the National Women`s Law center, Ralph Nader`s Public Citizen Litigation Group and People for the American Way.
He accuses them of engaging in a national campaign of deliberate distortions and lies about his constitutional theories and his positions on specific decisions.
In every instance, he writes, they either misrepresented his views or ignored the fact he had discarded or altered them over the years.
Item: In 1963, Bork wrote an article that deplored proposed laws permitting blacks access to public accommodations. To him, such laws were based on ”a principle of unsurpassed ugliness.” At the time, he said, as a libertarian, he distrusted government regulation of private businesses; he has since come to see his position was wrong and is no longer a libertarian.
Item: A People for the American Way commercial narrated by Gregory Peck stated that Bork was in favor of poll taxes and literacy tests employed to prevent black Americans from voting. The commercial, he writes, ”was a particularly egregious falsehood.”
The truth, he contends, was more complicated. Yes, he had objected to decisions striking down a poll tax and a literacy test, but he said he was not motivated by racial concerns. In the first, his objection was to the overturning of a legal precedent and in the second to permitting Congress to disregard a Supreme Court ruling.
Item: He once held that only ”political speech” is protected by the First Amendment, not literary or scientific speech or writing. During the hearings, he said only ”certain forms of pornography” should not be protected.
His prolific writing while a professor of law at Yale University, Bork observed, created problems for his nomination. ”If I hadn`t written anything,” he said, ”they wouldn`t have had anything to distort.”
Bork dispensed a dubious compliment to Anthony Kennedy, the conservative who was eventually appointed to the seat Bork was to have and whose Senate confirmation was unanimous. ”He was smarter than I,” Bork said. ”He taught constitutional law for more years than I did and never wrote anything.”
Bork`s disappointment at failing to be confirmed is understandable. Few would have predicted such a result when President Ronald Reagan strode into the White House press room on July 1, 1987, to announce his choice to replace Justice Lewis Powell, who was retiring.
The President praised Robert Heron Bork, 60, then a federal appeals court judge, as ”a premier constitutional authority” who was ”widely regarded as the most prominent and intellectually powerful advocate of judicial restraint.”
”Judicial restraint” were code words for a conservative jurist, a species that was faring well under Reagan. His elevation of William Rehnquist to chief justice and his selections of Sandra Day O`Connor and Antonin Scalia to the Supreme Court had sailed through the Senate. All three were conservatives, as were the judges Reagan had appointed to vacancies in the federal judiciary, whose numbers now exceeded more than half the judgeships.
As for Bork, it would be hard to find someone with a more distinguished legal career.
A graduate of the University of Chicago Law School, he has been a partner in one of the nation`s major law firms, Kirkland & Ellis of Chicago, and had taught law at Yale before becoming solicitor general, whose duty is to represent the United States before the Supreme Court as the federal government`s chief legal officer.
In both his federal jobs, he had won swift and overwhelming Senate approval, and he estimated that when he and Scalia, also a former appeals judge, had dealt with the same cases, they had agreed 98 percent of the time. Within two hours after Reagan`s announcement, Sen. Edward Kennedy (D., Mass.) signaled trouble ahead by lambasting Bork from the Senate floor.
”Robert Bork`s America,” Kennedy thundered, ”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.”
Bork and his supporters were stunned. ”Not one line of that tirade was true,” Bork writes.
It was evident that the country`s liberals, scorned and outnumbered but still capable of having their moments, were mobilizing for action.
In retrospect, however, Bork believes that ”the furor and the venom”
directed at his nomination by the ”liberal elites,” ”the ultraliberal activists,” ”the intellectual or knowledge class,” which are terms he uses for the country`s ”left-liberal culture,” were not so much about him as about the principles he believes a judge should follow to make decisions.
The framers` intent
Bork subscribes to ”the American orthodoxy” of ”original understanding,” which seeks to interpret the Constitution according to the intentions of those who wrote and ratified it.
But to those of the ”liberal culture,” he writes, ”original understanding, and the political neutrality it requires, are anathema”
because ”they have moral and political agendas of their own that cannot be found in the Constitution and that no legislature, or at least none whose members wish to be re-elected, will enact.”
Alluding to the book`s title, Bork writes, ”In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government (original intent).”
”The central problem for constitutional courts” in the United States, he writes, is in continually trying to reconcile two opposing principles.
”The first principle is self-government, which means that in wide areas of life majorities are entitled to rule, if they wish, simply because they are majorities. The second is that there are nonetheless some things majorities must not do to minorities, some areas of life in which the individual must be free of majority rule.”
Law professors who repudiate the concept of original intent, he writes,
”have overrun a number of law schools, including a large majority of America`s most prestigious, where the lawyers and judges of the future are being trained.”
The conflict over his nomination, he writes ”was merely one battleground in a long-running war for control of our legal culture, which, in turn, was part of a larger war for control of our general culture.”
Warren`s `moral imperialism`
To Bork, the liberal Warren Court, headed by Chief Justice Earl Warren from 1953-69, ”stands first and alone as a legislator of policy” and an exemplar of ”moral imperialism.”
Among the major rulings of the Warren Court with which he can discover no constitutional basis are the 1964 one-man, one-vote decision and the 1965 decision which struck down a Connecticut law forbidding the sale and use of contraceptives.
Justice William O. Douglas wrote the majority opinion in the latter case, proclaiming an unstated principle in the Constitution of the right to privacy. The state, he said, had no authority to dictate private sexual habits. In 1973`s Roe vs. Wade, the majority would cite this right to privacy in allowing abortions.
Bork also has reservations about Brown vs. Board of Education, the 1954 decision which struck down state-mandated segregation in public schools. While commending it as ”the greatest moral triumph constitutional law had ever produced,” he writes that it is supported by ”a weak opinion” that has ”a calamitous effect upon the law.”
Bork said that Warren ”apparently thought he was departing from the Constitution when he wrote the opinion, which gave him and the other activists the impetus to go on to further adventures in making policy. I explain in the book how they could have explained Brown on the basis of original understanding. Unfortunately, they didn`t.”
Shifting core values?
News coverage of his nomination, in Bork`s eyes, was generally hostile and biased, ”especially the TV networks and the newspapers on the East and West coasts.”
Some papers came to Bork`s defense. A Tribune editorial found him ”a smart, reasonable, decent man” who had been tarnished by ”an enormous build- up of negative publicity, much of it based on quotations lifted out of context from (his) academic writings.”
Columnist David Broder saw Bork as ”warm, open, generous and sympathetic” but also someone who in his roles as ”a scholar, teacher and writer” had ”often been a slave to his theories,” managing ”to ignore the harsh reality of the pain real people experience when the law ignores their pleas for justice.” As a judge, however, Broder wrote, Bork had been cautious and restrained and his decisions had fallen ”within the mainstream conversative tradition. . . .”
Arthur Schlesinger Jr., an old-school liberal, pointed out that the framers ”disagreed vehemently among themselves over their own original intent.”
Schlesinger continued: ”Judge Bork reminds one of those dogmatic, right- wing eccentrics encountered on college campuses who like to tease and provoke, and make stimulating teachers and affable colleagues. But there is something basically frivolous to his constitutional interpretation.”
Frivolous or not, Bork`s book has been selling well. For the last two Sundays, it has been No. 1 on The Tribune`s list of nonfiction best-sellers and 10th nationwide.
Leading conservatives and neo-conservatives, for whom Bork has become a hero, have lauded it. Columnist George Will calls it ”elegant and
entertaining,” and economist Milton Friedman finds it ”profound, learned and sophisticated.”
Not surprisingly, there are contrasting assessments.
”The title of his book is a very catchy notion,” says Geoffrey R. Stone, dean of the U. of C. Law School. ”It claims implicitly that there`s a correct constitutional law known to Robert Bork and that those who disagree with him are tempting people away from the true understanding.
”One could just as easily and accurately say that those who are tempting people away from the true understanding are those represented by Robert Bork and that a true constitutional interpretation involves an expansive, evolving understanding of fundamental constitutional principles.
”In Bork`s view, those whom he describes as judicial activists with their own moral and political philosophy are imputing to the Constitution their own views in the face of democratic preference.
”The answer to that is that Bork`s view in effect betrays the whole purpose of constitutional law in the name of rampant and uncontrolled majoritarianism.
”It means that first, the framers of the Constitution first wanted to establish a democratic form of government, and second, they were acutely aware that there are dangers in majority rule.
”Majorities, they saw, can often be intolerant, hysterical, self-interested and short-sighted. And in creating the written Constitution-and in particular with the Bill of Rights-they sought to put out of reach of majority rule some basic rights.”
Bork resigned from the bench in early 1988 and is a fellow with the American Enterprise Institute, a conservative Washington think tank.
He can take some solace in knowing he is not alone in being rejected for the Supreme Court. Since 1789, 28 nominations to that court have failed; 12 were rejected and the remainder were either withdrawn or allowed to lapse when rejection appeared imminent. Four of those rejected would serve terms as justices. The total number of Supreme Court justices now totals 106.
