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Howard Baker had been forewarned about the president’s “recent detachment and vagueness and . . . about whether the president was fully functioning.” Baker’s former chief of staff, Jim Cannon, reported that Reagan was “failing—fast,” and that “members of his staff had been signing his initials on policy papers.” But after close personal observation, Baker found the opposite was true—that, in his estimation, the president was in complete control of his faculties.
His leadership abilities were put to the test over the opportunity to fill another vacancy at the Supreme Court. On June 28, 1987, Justice Lewis Powell notified the White House that he intended to retire after serving fifteen years on the bench. Powell was seventy-nine, a Nixon appointee who had undermined conservative causes by casting deciding votes in favor of abortion, affirmative action, and separation of church and state “regardless of his own personal views about the case.” Reagan intended to appoint a judge who would impart a stronger conservative footing and rebalance the court in a shift to the right—“toward the Constitution,” as Ed Meese emphasized. In fact, a candidate was already at the top of the list.
On July 1, Reagan announced he was nominating Robert Bork, a former Yale law professor and judge on the U.S. Court of Appeals for the District of Columbia. It touched off a firestorm that seized the front pages from Iran-Contra. Bork’s writings from the appeals court bench were viewed by many as strident and ideological. The president insisted, “He is widely regarded as the most prominent and intellectually powerful advocate of judicial restraint in the country,” but an outcry was heard almost as soon as the words were out of Reagan’s mouth.
Ted Kennedy led the charge to dispatch the Bork nomination. In a denunciation issued immediately on the floor of the Senate, he declared, “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, school children could not be taught about evolution, writers and artists could 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—and is often the only—protector of the individual rights that are the heart of democracy.” No justice, Kennedy said, “was better than this injustice.” Benjamin Hooks, the executive director of the NAACP, trailed Kennedy’s blast, saying, “We will fight it all the way—until hell freezes over, and then we’ll skate across on the ice.”
The fight against Bork began to escalate. No one challenged his legal qualifications. The New York Times editorial board wrote, “Robert Bork is a lawyer and judge of formidable intellect. His wit and charm made him a hit with Yale law students of all philosophical persuasions.” But his judicial philosophy alarmed centrists and liberals who vowed to fight—and defeat—his confirmation.
It was an extraordinary conflict. Only rarely—in fact, only once, during the Depression—had a justice been rejected for his political beliefs. Conventional wisdom held that a Supreme Court nomination was above politics. But the Reagan administration had set the table for battle with Antonin Scalia’s appointment in 1986. Scalia’s adherence to “strict constructionism,” or “originalism”—interpreting law according to values explicitly expressed by the framers of the Constitution—left all other decision making up to legislatures. In other words, a state law prohibiting the use of contraceptives, which the Supreme Court had struck down in 1965 (a decision Bork criticized), would not be heard by a bench with originalists in the majority. The same was true of Roe v. Wade and Brown v. Board of Education. Democrats vowed not to seat another ideologue on the Court.
The president was determined to stand by Bork. He had been a leading contender when Sandra Day O’Connor was picked and a leading contender when Antonin Scalia was picked. “I’ve passed over Bob Bork twice,” Reagan said. “This time, he’s my nominee, and we’re going to make sure he’s confirmed.”
It wasn’t as easy as that. The confirmation process became a political knife fight. Joe Biden, an early Bork supporter, had second thoughts this time around. Howell Heflin, a senator from Alabama, led an exodus of Southern Democrats, which churned up doubt in some “squishy Republicans,” including Oregon senator Robert Packwood, a confirmed “no” vote. And Robert Bork wasn’t helping himself. He came off as brusque, pompous, and ungracious in person, and he handled himself poorly as a witness in front of the Senate Judicial Committee.
After polling key officials on the Hill on October 1, aides advised the president that the confirmation was a lost cause and that it would be best if Judge Bork withdrew. Reagan demurred. “He thought it was Bob Bork’s decision,” A. B. Culvahouse recalls. “If Bork wanted a vote, he’d support him.” However, Howard Baker and Ken Duberstein met with the president and Bork on October 9 to report that the votes were not there. The Judiciary Committee had voted against recommending the judge to the full Senate. Robert Bork was not going to be confirmed.
“What do you want to do?” Duberstein asked him.
Bork’s eyes narrowed, he leaned forward in his chair. “I want to line them all up and make them vote,” he said, to everyone’s dismay.
On October 23, 1987, the roll-call vote wasn’t even close: forty-two for, fifty-eight against. It was official: he was the first person to be “borked.” He would not be the last.
Ed Meese immediately proposed they nominate Douglas Ginsburg to fill the empty Court seat. Ginsburg was a former Harvard Law professor, a vigorous conservative, more conservative than Bork, and young—only forty-one years old. Howard Baker pushed hard for Anthony Kennedy, a more mainstream conservative who had been close to the Reagan administration in Sacramento. He was a perfectly acceptable candidate with a number of close Democrats for friends. However, two factors tipped the scale in Ginsburg’s favor: his young age increased expectations that he’d serve longer on the Court; and his brief experience as a judge meant there would be less writing—a grand total of thirteen appeals-court decisions—for opponents to pick apart and criticize. Timing was another consideration. It was important to put Bork’s defeat quickly behind them by nominating a worthy replacement. Meese assured everyone that it wasn’t necessary to delay Ginsburg’s nomination by performing a thorough scrub. He’d already gone through an FBI background check as an appeals judge. “I know him well,” Meese said, “and he’s as clean as a hound’s tooth.”
“Okay,” the president said, “let’s go ahead and nominate him.”
They might have given that hound’s mouth a more thorough examination. In no time, Right to Life supporters expressed outrage at news that Ginsburg’s wife, an obstetrician, had performed abortions. She’d also lied about winning a beauty pageant. And on November 5, Nina Totenberg, NPR’s legal affairs correspondent, dropped a bombshell, reporting that Ginsburg had smoked marijuana socially while teaching at Harvard. Ginsburg admitted he’d smoked pot “on a few occasions.” “I don’t see any reason why I should withdraw his name,” the president mused. But White House aides looking into the allegation found “he not only smoked a lot, but he had actually formed a little cooperative to buy pot.” What kind of example does this set, with the “Just Say No to Drugs” campaign? they wondered.
Ken Duberstein called Ginsburg and said, “You’re going to withdraw your nomination tomorrow. I’ll draft a statement for you to read.”
Howard Baker and A. B. Culvahouse delivered the news to the president. He looked up from his desk and said, “I should go with Tony Kennedy, right?”
There wasn’t much choice. Kennedy was the last name on his list. This time, the nominee got a thorough scrub. “A.B. and I interviewed him on a Sunday at the Justice Department,” Duberstein recalls, “and asked him all these mean, nasty, invasive personal questions.” Kennedy assured them it would be a “very boring Sunday morning,” and he didn’t disappoint. On February 2, 1988, the Senate confirmed him 97–0 in a rare bipartisan effort.
CHAPTER FORTY-FOUR
THE LONG GOODBYE
“All finite things reveal infinitude.”
—THEODORE ROETHKE
Neither, it seemed, was the economy, which delivered a series of seismic shocks.
The stock market had been driven up to hallucinatory heights, “powered by consumer spending and fueled by debt.” The country was living beyond its means. America’s level of private and business debt approached a gargantuan $8 trillion, twice the country’s gross national product. Consumer borrowing was out of control. Dozens of savings-and-loan associations had filed for bankruptcy. The economy was on a collision course with recession.
Anticipating such a possibility, the Dow Jones Industrial Average suffered a nasty fall of almost two hundred points between late August and mid-September 1987, and U.S. bond prices dropped 30 percent, prompting economist John Kenneth Galbraith to warn of “a very, very nasty run on the dollar and also a nasty collapse of the stock market.” Within weeks, the worst-case scenario happened. On October 19, the Dow plunged 508 points, a spectacular collapse, obliterating an astounding 22.6 percent of its value in a single day—double the loss in 1929 that touched off the Great Depression. The president assured investors that “the underlying economy remains strong,” unwittingly quoting Herbert Hoover almost word for word. President Reagan also called the crash “just a correction,” which did little to restore public confidence. Nor did it comfort the thousands of investors wiped out by margin calls in the liquidation. Ten days later stocks declined another 8 percent before the market began to stabilize, but the “correction” had exposed a cicatrix of economic fault lines.
Most economists recommended a tax increase mixed with regulatory reforms to trim the budget deficit, but on both fronts Reagan continued to resist. He abhorred governmental red tape almost as much as he loathed taxes. “His trust,” as Lou Cannon noted, “was in the magic of the marketplace.” According to the president, the deficit was Congress’s burden to bear. “I have great confidence in the future,” he reiterated. But his morning-in-America optimism was no longer enough to give him a pass. As the Dow continued to seesaw, the president was forced into action. “I will meet with the bipartisan leadership of Congress to arrange a procedure for deficit reduction,” he promised in a press conference on October 22. Reluctantly, he conceded, “I’m putting everything on the table with the exception of Social Security.” Did that mean he’d consider new tax increases? The president remained vague. “They’ll find out when I sit down there,” was all he’d allow.
As a close friend revealed, “I promise you, the stock market is the last thing on his mind right now.”
At that moment, Nancy Reagan’s health was dominating his thoughts. On October 5, during her annual mammogram at Bethesda Naval Hospital, doctors had detected a suspicious lesion—possibly a malignant tumor—in her left breast. A biopsy revealed that it was cancerous, but noninvasive; it had not spread to other areas of the breast or to nearby lymph nodes. Doctors recommended she consider a lumpectomy, in which only the tumor and some surrounding tissue would be removed; otherwise it meant undergoing a radical mastectomy, a more drastic procedure in which the entire breast and underlying muscle are extracted. According to one of her physicians, “She went against all medical advice in deciding to have her entire left breast removed and the underarm lymph nodes.” He described it as the most aggressive option, like “taking a shotgun to kill a fly.” Doctors at the Mayo Clinic delivered a similar opinion. But the First Lady had made up her mind. “A lumpectomy seemed too inconclusive,” she said, and required follow-up radiation treatment. “I couldn’t possibly lead the kind of life I lead, and keep the schedule that I do, having radiation or chemotherapy.” A mastectomy was “the best way to get it all over with.”
“Ronnie wept,” she said, when he learned of her diagnosis, but understood there was no further malignancy. Based on all indications, the cancer had been contained, “making her prospects for a full recovery virtually certain.”
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That was more than could be said for the administration. More tremors rumbled through the White House during the fall of 1987.
Rumors were rife that Howard Baker, whose arrival as chief of staff had done much to stabilize the administration, was “all but certain to leave his job before next year is up.” “Very soon after Howard took the job, I could see him pulling back and looking for a way out,” a close associate recalls. If the whispers were true and Baker did in fact step down, aides feared the president would lose his dependable keel.
Other exits were not viewed as entirely unfavorable. In early November, Caspar Weinberger announced his resignation as secretary of defense. His wife, Jane, was ill, which directed his priorities elsewhere, but truth be told Weinberger had been marginalized in recent key policy initiatives, none more consequential than the Reykjavik agreement to limit intermediate-range missiles in Europe, which he continued to oppose and lobbied to overturn. He also advocated a thinly disguised twist on Star Wars—the development and deployment of satellites armed with interceptor missiles in order to defend U.S. interests against Soviet attacks in space. He had virtually no support on Capitol Hill for his Defense budget. His mantra, “Never compromise,” no longer felt in step with the moment; only hard-core conservatives continued to hew that line. Pat Buchanan, for one, remained a voice in that wilderness. “The spirit of compromise is in the air,” he remarked with distaste. “The theme is, ‘Let’s go up and compromise one for the Gipper.’” But pragmatists and most mainstream Republicans ignored such commentary.
Weinberger’s departure would help to spur progress toward a more meaningful strategic arms-reduction treaty—or START—with the Soviet Union. With his naysaying out of the president’s ear, George Shultz had a mandate to pursue further negotiations. Shultz was also tasked to close a deal for a Reagan-Gorbachev summit in Washington, as the two leaders had proposed during their talks in Reykjavik. Summit fever was running high. To stimulate it, in the spirit of glasnost, the Soviets advanced several landmark reforms: allowing the refuseniks—mostly Russian Jews—to emigrate if they chose to do so, agreeing to sign an INF treaty, and revealing that they were pulling out of Afghanistan as soon as was humanly possible. There was also talk of reforms in some of the Warsaw Pact countries. Shultz felt that “a profound, historic shift was under way” and that the Soviet Union was “turning a corner.” To top it off, Gorbachev, for no apparent reason, dropped his insistence on limiting SDI development as a prerequisite to signing the INF treaty.
“Gorbachev just blinked,” Shultz reported to the president, who thought there was now no limit to agreements they might reach. Had Gorbachev finally surrendered to the inevitability of SDI? Not in any passive sense. Gorbachev had been assured by his top scientists that “SDI was not realistic from the technical point of view. It looked frightening initially, but it wouldn’t work.” It was “more dream than threat.” Let the Americans waste their resources, he reasoned. There was other turf on which he’d stand his ground.
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The Soviet leader arrived in Washington on December 7, 1987, in an effort to produce a substantive arms-reduction agreement, a meaningful first step toward ending the Cold War. The INF treaty, Gorbachev said, would “set the whole process in motion.” But he was concerned with reports of a congressional backlash. A group of conservative senators, including Jesse Helms, Malcolm Wallop, and Dan Quayle, had already announced their opposition to the treaty. They feared it would lead to a denuclearized Europe, leaving the West vulnerable to conventional Soviet forces, and they intended to amend it—and amend it and amend it—whatever it took to dilute and ultimately scuttle its chances of passing.
Even Bob Dole, usually a productive partner in the Senate, accused the president of “stuffing this treaty down the throats of the allies.”
The hard-line conservatives were harsher in their criticism. The head of the Conservative Caucus, a right-wing public policy organization, derided Reagan as “nothing more than a useful idiot for Soviet propaganda.” And George Will accused him of accelerating America’s “intellectual disarmament” and effectively losing the Cold War.
Reagan basically ignored the opposition. He planned to sign the treaty in a televised ceremony with Gorbachev soon after the general secretary set foot in the White House—just after lunch, at 1:45 p.m., a time set by Joan Quigley. The president was eager to make an impression. He’d already arranged for Gorbachev’s flight path to take him low and slow over Southern California so he could see endless private houses with backyard swimming pools, “perhaps with a second car or a boat in the driveway.” “These are the houses of the working people,” he wanted to tell Gorbachev. Reagan had always harbored a secret wish to fly the Soviet premier through American suburbs, showing off its factories and parking lots jammed with the workers’ gleaming late-model cars as a contrast to the Soviet way of life. Americans had been doing this to Soviets at least since Nixon showed off the American model kitchen in the so-called Kitchen Debate. But this was the sentimental MGM ideal of America. Gorbachev knew enough not to be taken in by that image. When the president, during their initial discussion, brandished it in his argument against Soviet human rights abuses, Gorbachev replied to him much as Khrushchev had replied to Nixon: “What about your people who sleep in the streets and all your unemployed?” He also rebuked Reagan about “a proposal then current in Washington to build a fence along the Mexican border,” which he said “was as bad as anything the Soviets had ever done.” He was well informed about the United States and especially its cultural idiosyncrasies; he wasn’t about to let its president reprimand him—and he pushed back. “I’m not on trial here,” he snapped unapologetically. “I’m not a defendant and you’re not a judge to judge me.”