What It Takes

by Richard Ben Cramer

  But the big point was, he had the quotes ... and not just from Kurland, but from Senators (some still in the chamber) who had spoken in the Carswell and Haynesworth nomination lights, during Nixon’s time ... from debates on John J. Parker, a Hoover nominee in 1930 ... quotes from Judge Learned Hand, Justice Felix Frankfurter ... from the Senate speeches on Roger Taney, Andrew Jackson’s choice for Chief Justice ... and back to 1795—Old John—Justice Rutledge, a nominee of George Washington, whom the Senate rejected because it didn’t like his views on the treaty with England.

  Biden didn’t have just the facts from the Senate and the nominees rejected (a list of which, lawyer-like, Biden inserted in the record) ... no, he went back to Hamilton in the Federalist Papers, and beyond, to the draft language proposed at the Constitutional Convention in Philadelphia.

  The fact was, the Senate’s “advise and consent” was intended, from the start, to forestall the President from remaking the Court in his image. The Senate had, for most of its two hundred years, scrutinized the philosophy and politics of nominees—not just their competence, or honesty. And when a President picked a justice for reasons of ideology, it was the Senate’s duty to examine that ideology.

  Biden spoke for an hour straight, and at the end, no one could lay a glove on him. Mitch McConnell, GOP from Kentucky, actually had written on this subject at law school ... but when he came at Biden, Joe hammered him with history.

  And Dole, who had to carry the flag across the aisle, had a little speech ready, with a couple of zingers about “constituent groups” and “campaign promises.” But he couldn’t really knock down Biden’s point ... so he ended up just insisting that Bob Bork wasn’t such a bad guy.

  Biden said not a word about Bork (save to note his nomination, in the first sentence of his speech). He was arguing high principle. Tell the truth, he liked the view from high ground—Joe Biden, Defender of the Constitution! Anyway, if he could set the ground rules, he could take the fight to Bork. Through the millions of words that Bork had written or said, Joe Biden would paint a picture of the judge for the American people. That was how he could win the fight.

  Problem was, he didn’t know how he could paint the judge, or paint him into a corner, intelligibly. Joe had to make it connect.

  And he would not know ... till he had to make another speech.

  The staff made him dozens of fat briefing books: antitrust, privacy, stare decisis, civil rights, First Amendment, Fourteenth Amendment ... everything Bork had said on the subjects. Joe could almost recite chunks of Bork’s 1963 New Republic article, where he blasted the Kennedy civil rights bill ... Bork’s 1968 Fortune piece, in which he defended the Supreme Court’s Griswold v. Connecticut ... Bork’s 1971 article in the Indiana Law Review, wherein he changed his mind and attacked the Griswold decision.

  That was the key, Biden was convinced: Griswold v. Connecticut. That was the 1965 case in which the Court threw out the old Connecticut law that banned the use of contraceptives (even by married couples under the advice of their physicians). A majority of the Court found that the Constitution guarantees a right to privacy ... though those words do not appear in the document of the Constitution, the majority opinion called privacy “an unenumerated right.”

  Robert Bork’s problem was, he could not stomach the concept of “unenumerated rights.” In Bork’s view, once a judge started stretching the Constitution to cover some notion—however desirable—which did not appear in the document itself ... where would it stop? Would some latter-day judge find a Constitutional right to recycling?

  But Griswold was now important law: when the Court took the states out of the business of regulating abortions in Roe v. Wade, the majority upheld a woman’s right to abortion based on the unenumerated right of privacy. If Griswold fell, Roe would surely be the next shoe to drop.

  That’s what Joe’s adviser, Larry Tribe, meant when he said on the telephone, the day Bork was named:

  “Bork’s problem isn’t just Roe, it’s Griswold.”

  That was the truth at the bottom of the polls (the Biden campaign took its own quickie poll in Iowa, when Bork was named, and later got national numbers from a poll commissioned by the AFSCME union). The country was deeply split on abortion, but an overwhelming majority thought the government should stay out of their private lives.

  Hell, Joe didn’t need a poll to tell him people thought they had a right to privacy. You stand up on a chair in Pala’s Pizzeria and ask the guys there: Does the government have a right to make laws about what you can do in your bed ... with your wife? Well, they’d knock over tables to punch your teeth out.

  So now, when he worked through the case law with the experts, Joe kept bringing the sessions back to the ground floor:

  “How’re we gonna talk about Griswold ... how do we tell people the story?”

  Sometimes it was Tribe, from Harvard, or Kurland, from the University of Chicago. Joe went through the cases with them until he could render the law in the common tongue. Kurland and Tribe were an odd couple. Kurland was a conservative—roly-poly, he looked like Santa in a suit and tie ... you could hear him breathe. Tribe was the liberal—svelte, tanned, worldly ... likely to show up at Biden’s house in an open-necked sport shirt, might catch a set of tennis between sessions. But they both hated Bork, so they kept coming to Wilmington. In August, when Joe took the family to Bethany Beach, Kurland or Tribe would show up. They were Biden’s sounding boards ... and his teachers.

  In effect, Biden went to law school that summer, paced off the ground that he’d only hip-hopped at Syracuse. But this was the best law school in America. And Biden loved it. He had the kind of August he used to have before a football season—working on his moves, every day, all day.

  “Tell me about the history of the Ninth Amendment. Why’s it in there? ...”

  Campaigning was just a distraction now. He’d do it, if he had to—some event he couldn’t miss. Biden had a new stump speech, mostly about foreign policy. It worked better than “my generation,” but it still didn’t give him the tingle. One day that August, Bill Schneider, the columnist-pundit-pilgarlic-pollster-guru, showed up with a tape of a long, lovely TV ad for Neil Kinnock, the British Labour Party leader who was running against Margaret Thatcher. Kinnock had some beautiful stuff about what the Labour Party meant to working folk. To Joe, that was exactly why he was running: to give people a platform on which to build their futures. He grabbed that tape and took it home; he inhaled the thing. It was like when Barbra Streisand came on the radio—Kinnock was singing Joe’s song!

  He couldn’t talk about Bork yet, couldn’t do it piecemeal. He knew, when he laid out his case, it had to hit with a thump.

  He had a speech scheduled that August at the ABA, the American Bar Association convention in San Francisco—another “serious” speech. He was going to give them a souped-up version of his Senate speech: advise and consent. That was scholarly ground he could stand on. But then he got to talking at his house one day—side porch again, another Bork meeting. The experts had left for the day, but Gitenstein was still there, and Donilon, and Vince D’Anna. Vince was from the Delaware staff, a “real guy,” as Joe understood the term: smart as hell, sure, with tremendous political instinct, but not a Washington-head, not a suit, not a lawyer.

  And that made all the difference.

  Because Joe just started talking the stuff to Vince—like he would at Pala’s—just shooting the shit about this privacy business ...

  “I mean, I’m serious! You know, you’re in your bed, and a cop comes in, says, ‘What do you think you’re ...’ No! Bork comes in! I mean, can you see ... wait! No! Here’s the ad—here’s the ad we oughta run, right? ... There’s this couple in bed, and the guy hears something, straightens up ... it’s dark, there’s music, right? DUM dum dum dum DUHHNN! ... And it’s BORK! ...”

  They’re giggling on the porch.

  “That’d do it.”

  “Hell, yeah.”

  “Glad that sonofabitch wasn’t aro
und when I got married. Jesus!”

  “Jail time!”

  “Yeah, whole different ball game ...”

  “That’s it, if he’s the law ...”

  “Yeah, woulda been ...”

  “No, wait! I mean it. That’s it! If he had been the law ... that’s how we show it.”

  “If Robert Bork had been on the Court ...”

  “If Robert Bork had been Justice Bork ...”

  “If ... Judge Bork had been Justice Bork for the past twenty years, and he had prevailed ... this would be a very different country.”

  “Thirty years ... Baker v. Carr.”

  “Forty years. If Judge Bork had been Justice Bork for the last forty years, we would have a very different—poorer ...”

  “No, let people decide that. We’ll just tell them the cases—the things that wouldn’t have happened.”

  “That’s it. That’s what we’ll do for the ABA. We just lay it out: These are the cases that Robert Bork would have reversed. Let them imagine what it would be, without ...”

  “That’s it.”

  “Let’s do it ...”

  That was Joe, of course. He was revved up. He wanted to do it ... now.

  But it couldn’t be now: it had to be careful, scholarly ... serious.

  He wouldn’t get the speech for three or four days, but that same night—late that night—he could already hear it in his head. He could see it ... the ABA, the Senate floor, the hearings ... like stripes on the field to the end zone. He could see ... exactly ... how he was going to be.

  “Ladies and Gentlemen, if Judge Bork ...”

  He was pacing in the night silence of his home.

  “... had been Justice Bork ...”

  47

  A Platform upon Which to Stand

  HE ALMOST LOST THEM at the ABA—a huge hotel ballroom, a thousand prosperous, comfortable suits, come to enjoy their week in San Francisco before returning to their life’s labor, the protection of corporate America from a predatory government and citizenry. This was not an easy group to rally to the barricades. Then, too, Biden talked for an hour before he got to the point.

  He’d left in a lot of “advise and consent,” the whole nine serious yards. Joe’s voice sounded reedy and dry as he backhoed the history. There were no applause lines. You could hear wool pants rustling on Naugahyde banquet chairs. A few folks stood up, all too visibly, and walked out of the hall ... watched out the door by Joe’s son Beau, who’d come to San Francisco, who was dying a slow death for Dad, in the back of the room, while Joe droned on ... till Beau, toward the end, was staring at his shoes, murmuring, “Dad ... finish.”

  But then Joe got to Bork, and the cases ... not an attack—not obviously. He just laid out the facts at law, and Bork’s opinions on the opinions.

  First was Griswold: Bork not only called the decision “unprincipled,” but he stated there was no difference—at law—between a husband and wife who wished to be relieved of regulation in their bedroom, and a utility company that wished to be free of smoke-pollution laws.

  Then there was Skinner v. Oklahoma, where the Court struck down a state law permitting the sterilization of criminals. Bork called the majority opinion “intellectually empty.”

  There were cases where the Court struck down restrictive racial covenants, a case on poll taxes, the Voting Rights Act, affirmative action, a sixty-year-old decision allowing parents to send their kids to private schools, a case that overturned a state law forbidding the teaching of German ... there was Roe v. Wade ... there were two cases from the sixties, in which the Warren Court erected the doctrine of one man, one vote ...

  Bork had said of one man, one vote: “On no reputable theory of Constitutional adjudication was there an excuse for the doctrine. ...”

  By this point, the rustling in the hall had changed to silence, and then to whispered exclamations, as Biden hammered home seventeen cases. Most of these lawyers had had no idea ... Bork was a flaming radical. Jesus! He meant to push down the pillars of their temple!

  “We cannot be certain,” Biden said, at the close—his voice rang through the ballroom—“that these are among the dozens of precedents that Judge Bork might vote to overturn. But we can be certain that if Judge Bork has meant what he’s written for the past thirty years ... that had he been Justice Bork during the past thirty years, and had his view prevailed ... America would be a fundamentally different place than it is today. ...”

  When his voice died away, the suits jumped up and gave him a standing ovation. They came at Joe by the dozens, to shake his hand. The press in the hall badgered Rasky for a text—of course, Joe had screwed around with the text till way too late. Rasky snapped at the pack: “Why’n’cha learn to take notes?”

  But it didn’t matter. This was front-page, anyway—Biden Makes His Case.

  Even Joe was amazed at the good press ... they actually got it! And they wrote it! ... Unbelievable.

  Now he had to find a way to make the message clear in living rooms, and barrooms. Biden v. Bork ... High Noon, Main Street ... he had to get ready.

  That’s all he wanted to do—run through the moves, game it out:

  “So then, if he comes back with Harlan, I’m gonna use that Harlan dissent. I’m gonna read the thing, right? That piece at the end—and then I’ll say: ‘Judge, do you agree with that?’

  “So he can’t, right? So I’m gonna read in the White House thing, saying he’s in the tradition of Harlan ...”

  “What if he just says he changed his mind?”

  “He can’t change his mind on everything.”

  “What if he does?”

  “I got his article. When’s it from—’86?”

  “Listen to this ... listen to what he says ...”

  “Shit, this guy’s completely out on the edge.”

  “Why don’t you just use this?”

  “Too legalistic—people gotta understand. Look, let’s do it again—if I say ...”

  Of course, Biden wouldn’t admit he was going to win—never. But you could see it sinking in.

  He’d go down to Washington, Senators were coming to him ... they’d read that stuff he sent over ... you know, the civil rights cases—very disturbing ... people aren’t going to like that. The southerners were key—most of them won with black votes.

  One offered advice: “Y’know this fella’s weeird ... Joe, y’jus’ put a camm’ra off’ta sahhhd ... y’show that sahhd shot, with the beeard ...”

  “Good idea,” Joe’d say. He’d guarantee one thing: it wasn’t going to be an Ollie North deal—the Senators on TV, creating an instant American hero—no way!

  But, in truth, he didn’t want to win with camera angles, Q-factors ... or even personal stuff on Bork. He’d already told the committee: he’d get the FBI report—and that was it. Nobody else would even see it. He couldn’t win by tearing down Bork, the man. Biden had to win on the cases ... Defender of the Constitution ... otherwise, it wasn’t a win for him.

  “Tom,” he’d say to Donilon, “tell me again what’s gonna happen.”

  “Look, Joe, these are the numbers ...” Donilon would start again. He’d run through it a half-dozen times already. “Iowa is three-to-one against Bork ...”

  “Okay ...” Joe would look down, concentrating on the words.

  “Right now, your name recognition is ten percent—on its way to fifteen, twenty. That’s up from three—and that’s before the hearings. Your approval is up from one percent to five, maybe six—I don’t know. But look: it’s TV—not bites—it’s hours of TV, day, after day, after day ... you’re the only candidate who’s doing anything real. Your name recognition alone is gonna go to fifty, sixty, seventy percent. Some of those people are going to be for you—that’s guaranteed, right? And since you’re doing something they approve (it’s three-to-one against this guy), your approvals go up faster—by a higher rate—than your name recognition. So that means you’re gonna be at ten percent, and then you’re gonna be at twenty percent, and
then you’re gonna win Iowa. Then, you’re gonna win New Hampshire. Then, you’re gonna be President.”

  Joe would nod at the floor ... not agreeing, just nodding it into his head. Then, he’d look up at Donilon, and say:

  “Go through that again.”

  In Iowa, he could feel it turning—he could see it: he’s supposed to have thirty people at a coffee shop, a hundred show up. That packs the place, changes the feel ... changed Joe’s feel. But he still couldn’t figure, exactly, why? ... He couldn’t feel the connect, the thump in his gut, the way he had to have it.

  The Iowa guys were after him every week—how about next weekend? ... How about a day and a half? ... But Biden would get his chin out and insist he couldn’t cut a day from Bork—not an hour. Even events he couldn’t blow off—he’d be doing Bork in the plane.

  That’s how he was with the Iowa State Fair debate—it was a big deal, a Sunday, late August, Des Moines ... if he missed it, he’d be explaining for months. And he still didn’t know what he’d say: the staff had written a close for the debate, but it wasn’t any good. Joe knew he had to redo it. But that weekend, he had Bork meetings at the beach house—Larry Tribe was flying in from Boston, with Marttila. There were a dozen guys driving up from Washington. And Caddell was flying in from his California exile, making his bid to come back ... which meant, of course, he was coming back to take over.

  They went at Bork all day. Joe ran through the moves, to Tribe, for hours, while the rest of the staff and gurus just hung around the deck and listened. All except Caddell, who was in there, pitching. Hell, he’d argue law with Tribe!

  But you had to hand it to Caddell—guy was a genius with a poll. The AFSCME pollsters had concluded that the best chance on Bork was to prove he was “insensitive to certain groups”—in other words, a bigot. But Pat knew Biden would never do that ... and now that Pat had the cross-tabs from that poll, he picked them apart with ferocious precision—Biden wouldn’t have to do that.