The Tempting of America

by Robert H. Bork

  When Judge Douglas Ginsburg was nominated to the Court after my defeat, an anonymous leaker to the Washington Post said that a committee member referred to him as a “Borklet.”57 The leaker also said: “There are concerns that Ginsburg shares many of the conservative ideological beliefs that doomed the Bork nomination.”58 The ABA’s committee became more deeply involved in controversy when it developed that it had leaked the names of Reagan nominees to liberal, but not to conservative, activist groups in advance of the public announcement of the nominations in order to get their views. That practice had, of course, the side effect, intended or not, of giving such groups additional time to prepare opposition.

  This episode confirms, it must be feared, that none of the institutions of the law are free of the increasing politicization of our legal culture.

  It has been possible to recount only a small fraction of the campaign that was waged. In addition to the advertisements in newspapers and on television and radio, the mass mailing and the telephone banks, the groups lobbied senators and their staffs and informed reporters and editorialists of their version of my career and views.

  The campaign was summed up by Professor Robert W. Jenson, a Lutheran theologian whom, incidentally, I do not know, as “notable not only for its volume but for its scurrility and mendacity.”59 He wrote that much of the text of the newspaper and television ads had been “demonstrably false, misstating the matters at issue in cases decided by him and transforming statements that certain legal paths cannot lead to desired goals into statements that the goals are undesired. The misrepresentation has been so pervasive and its detection requires so little investigation, that either the sponsors and authors of these ads are astonishingly incompetent conceptually or they have simply lied.”

  Those who were helping me were concerned but kept saying that matters would be rectified when the hearings began and I had the chance to tell the facts as they were. We reckoned without the Democratic senators, the activist groups of the left, and the media.

  15

  The Hearings and After

  It is called the Senate Caucus Room or, more prosaically, Room SR-325 in the Russell Senate Office Building. A great deal of history has been made there, and a good deal of blood shed. It was the site of the Army—McCarthy hearings, at which Joseph Welch, the Army’s attorney, began the downfall of the senator from Wisconsin. It is also the room in which the Iran-Contra hearings had been held, the room where Colonel Oliver North electrified a national television audience with his testimony, although the congressmen grilling him did not realize what was happening until too late.

  That room held happy personal memories for me. I was sworn in as Circuit Judge on February 12, 1982, in the ceremonial courtroom. A great many judges and friends were in attendance. The oath was administered by Chief Justice Warren Burger, who had, nine years previously, performed the same task when I became Solicitor General. It is customary on our court to have a speaker for the occasion, and I had asked Edward Levi to do me the favor of making the address. Edward had been my professor in law school and later had been the Attorney General in Gerald Ford’s administration, so that he was my first professor and my last Attorney General. He had also been Dean of the law school and President of the University of Chicago. My entire family was present, including my mother. My son Robert held the Bible as I took the oath. Mary Ellen was not there. I have often reproached her for that, and she offers the inadequate excuse that she did not know me then. Afterward we went up the hill on Constitution Avenue to the Russell Building and the Caucus Room, where friends from the Kirkland firm threw a reception. A band played and the food, I am told, was magnificent. But so many people stopped to congratulate me, each then going off to the buffet, that when I finally got there the food was gone. We rode home in a car filled with balloons that a friend had sent. All in all, a wonderful and happy occasion.

  Now it was different. Green baize tables, cameras, hard lights, the room packed with people, the atmosphere of a Roman circus about to begin. The room had been rearranged since the Iran-Contra hearings so that there should be no danger that anything like the impact of Oliver North’s testimony might happen again. The long table at which the Senate Judiciary Committee sat was lowered so that its members would not be seen looking down on the witness. The television cameras were moved off to the left and raised so that the angle would not be good for the witness, and the press photographers were forbidden to take frontal shots from below during the testimony, as they had when Colonel North was the witness. The Judiciary Committee Democrats need not have worried. I did not have the histrionic talents of North and, if I had, would not have employed them. The emotional and rhetorical style that is entirely appropriate to a man in his position is not, in my view, appropriate to a federal judge or to any judicial nominee. I had prepared myself to answer questions matter-of-factly and to explain my view of judging fully.

  That day, Tuesday, September 15, 1987, Room SR-325 in the Russell Senate Office Building was jammed. Sitting at the committee table was the Chairman, Senator Joe Biden (Delaware), in the center and, as I faced them, to my right, the Democratic members, Senators Edward Kennedy (Massachusetts), Robert C. Byrd (the Senate majority leader, West Virginia), Howard Metzenbaum (Ohio), Dennis DeConcini (Arizona), Patrick J. Leahy (Vermont), Howell Heflin (Alabama), and Paul Simon (Illinois). To my left sat the Republican members, next to Biden the senior and Ranking Member, Senator Strom Thurmond (South Carolina), and then Senators Orrin G. Hatch (Utah), Alan K. Simpson (Wyoming), Charles E. Grassley (Iowa), Arlen Specter (Pennsylvania), and Gordon J. Humphrey (New Hampshire). I had talked to all of the senators in their offices before the hearing, as is customary, and had formed very different impressions of them as individuals. I was to come to know them much better over the five long days of my testimony. Ranged against the wall behind the committee were various staffers who aided the senators with their questioning during the testimony.

  I sat alone at a small table facing the committee. Behind me sat my wife, Mary Ellen, and my children, Robert, Charles, and Ellen. Sitting with them was Mrs. Potter Stewart, known as Andy, the widow of the late Justice Potter Stewart. Andy Stewart had asked if she could sit with the family as a way of showing her support. We were, of course, delighted with her gesture. Tom Korologos sat with the family as well. In the remainder of the seats were various clerks of mine, people from the Department of Justice, and people from the White House staff.

  Behind them, separated by a rail, at tables perpendicular to the committee table, were perhaps a hundred reporters from the print and electronic media. Still farther back was a small section for members of the public. There were far fewer seats than there were interested people, so those in part of this section were rotated in and out during the entire process.

  One had only to look at the committee to see the nature of the problem. Three of the Democrats had already announced vehement opposition to me before the hearings began: Biden, Kennedy, and Metzenbaum. Two of them, Biden and Simon, had announced their candidacies for the Democratic presidential nomination. That necessarily meant that Simon, as well as Biden, would vote against me. The voters in the Democratic primaries are far more liberal than the main part of the Democratic Party, and that is particularly true of those who participate in the Iowa caucuses, the first primary test, which was still ahead. No Democrat who voted for me would stand a chance in the party’s primaries. We were not sure about the other Democrats, but, as the campaign against my nomination by groups important to the Democratic Party intensified, some Democrats who had appeared favorable prior to the Senate’s recess were displaying signs of coolness. We also had to worry about Kennedy’s tactic of frightening black voters, because the black vote is essential to Democratic senators from the South.

  Joining me before the committee on that first day to introduce me and recommend my confirmation were former President Gerald R. Ford, Senator Robert Dole (Minority Leader, Kansas), Senator John C. Danforth (Missouri), and Representative H
amilton Fish, Jr. (New York). President Ford knew me from the days when I was Solicitor General in his Administration. Jack Danforth was in the first class I ever taught at Yale. I remember him well, not only because he was a fine student, but because my terror at facing a class for the first time was so great that I can still see all of their faces looking at me.

  The introductions need not be repeated here, but I found them thoroughly enjoyable, as would anyone upon whom praise is heaped. The senators made their opening statements, some lavish in their praise, some lavish in their denunciations, some lavish in their equivocations. It was apparent that not one person but several were being described by the senators. Kennedy stated that my public record showed that I was “hostile to the rule of law”1 and that I had “harshly opposed”2 and was now “publicly itching to overrule”3 Supreme Court decisions that seek to fulfill the promise of justice for all Americans. If that were not enough, I was “instinctively biased against the claims of the average citizen and in favor of concentrations of power, whether that is governmental or private.”4 Kennedy struck all the themes he had sounded in his initial denunciation of me and all those the groups had used in the public campaign. President Reagan had not chosen “a real judicial conservative”5 but “an activist of the right whose agenda would turn us back to the battles of a bitterly divided America.”6 He charged racism and sexism.7 It was an ugly performance, and he repeated it again and again as the hearings progressed.

  Senator Hatch said that, given my career and the witnesses who were to testify for me, “it is hard to understand why your nomination would generate controversy. The answer is found in one word, which is tragic in this judicial context, and that word is ‘politics.’ “8 He said the great danger “in the impending ideological inquisition is injury to the independence and integrity of the Supreme Court and the whole federal judiciary.”9 If judges began to decide according to political criteria, “we will have lost the reasoning processes of the law which have served us so well to check political excesses and fervor over the past 200 years.”10 Hatch quoted Hodding Carter, who had been high in President Carter’s administration: “The nomination of Judge Bork forces liberals like me to confront a reality we don’t want to confront, which is that we are depending in large part on the least democratic institution, with a small ‘d,’ in government to defend what it is we no longer are able to win out there in the electorate.”11

  Senator Simpson began, “Here we go again,” and referred to the process as “the 4-H Club of hype, hoorah, hysteria and hubris.”12 “Since this man’s name was proposed by the President, the various interest groups have been salivating at the chops…. I referred to them once as ‘bug-eyed zealots.’ I have no reason to change that opinion at all.”13 Since a great deal of the campaign against me insisted that I would disturb the balance of the Court in replacing Lewis Powell, Simpson noted that in cases where Powell voted on my decisions, he agreed with me in nine out of ten. “Let’s not miss that. Do not let that go off the wall or skip off the puddle.”14 He reminded his colleagues that the Senate Judiciary Committee had unanimously recommended my confirmation and the full Senate had unanimously voted confirmation twice, once when I was nominated for Solicitor General in 1973 and again when I was nominated for a seat on the court of appeals in 1982.15 The academic writings which now formed the basis for accusations all predated those confirmations.

  Senator Grassley said, “Make no mistake about it, the critics of this; [sic] nominee know the law they prefer is judge-made, and therefore susceptible to change by other judges. Their loud protests underscore that the law they prefer is not found in the Constitution or the statutes.”16 If it were, “they would have no fear of any new judge pledged to live by the credo of judicial restraint. Instead, these critics prefer judges who will act as some kind of‘super legislature’ who will give them victories in the courts when they lose in the legislature.”17

  Senator Humphrey stated, “I have been around this city for 9 years, and the charges against Judge Bork are the worst infestation of politics this Senator has ever seen.”18 He reviewed my record and quoted former Chief Justice Warren Burger: “I do not think in more than 50 years since I was in law school there has ever been a nomination of a man or woman any better qualified than Judge Bork.”19 Humphrey went on to point out that the year before the Senate had confirmed Antonin Scalia to the Supreme Court by a unanimous vote, though Scalia and I had served on the same court for four years and had voted the same way 98 percent of the time. “Does that make Scalia an extremist, too? Of course not. It means instead that these charges against Bork are political poppycock, pure political poppycock, 99.9 percent pure, so pure it floats.”20

  The reader may have gathered by now that I enjoy quoting the senators who supported me, but I think my enjoyment is understandable. Up until now I have been quoting denunciations of me in the public campaign against my confirmation. Everyone is entitled to some relief from quoting his enemies against himself. And it is surely a mitigating factor that I have not quoted the more extravagant praises.

  Finally, it was my turn. I introduced my family and Andy Stewart, mentioned that my mother, Elizabeth Bork, was watching on television, thanked the President for nominating me and those who had introduced me for their warm remarks.21 I then turned to what I took to be the central point of the hearings, the question of judicial philosophy, and made remarks about “the role of a judge in a constitutional democracy”22 that seemed to me correct then and seems so now:

  The judge’s authority derives entirely from the fact that he is applying the law and not his personal values. That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electorate or their representatives voted for. The judge, to deserve that trust and that authority, must be every bit as governed by law as is the Congress, the President, the state Governors and legislatures, and the American people. No one, including a judge, can be above the law. Only in that way will justice be done and the freedom of Americans assured.

  How should a judge go about finding the law? The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended….

  If a judge abandons intention as his guide, there is no law available to him and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate power.

  He or she then diminishes liberty instead of enhancing it. … [W]hen a judge goes beyond [his proper function] and reads entirely new values into the Constitution, values the framers and the ratifiers did not put there, he deprives the people of their liberty. That liberty, which the Constitution clearly envisions, is the liberty of the people to set their own social agenda through the processes of democracy….

  My philosophy of judging, Mr. Chairman, as you pointed out, is neither liberal nor conservative. It is simply a philosophy of judging which gives the Constitution a full and fair interpretation but, where the Constitution is silent, leaves the policy struggles to the Congress, the President, the legislatures and executives of the 50 states, and to the American people.23

  I have set out my statement with some fullness because this was the central controversy in the hearings. I stressed the necessity that the judge adhere to a process that did not involve him in making unguided policy. My opponents stressed the necessity that the judge make good policy, that the results he reaches be politically correct.

  The hearings take up five thick printed volumes, and there can be no possibility of recapturing their mood or restating all of even the main features. In their opening statements various senators had said that the main issue was judicial philosophy, and I had agreed. I was now to learn that there is no possibility of an adequate judgment of judicial philosophy by a group of senators, nor is that fact surprising. Aside from my years as a judge, I had spent decades analyzing and assessing courts and their performance in a wide variety of contexts. Senators, even the best of them, and the best are very goo
d, simply do not have much experience with constitutional law, either as practitioners or as professors. The worst of them know only what they like and suppose that is the Constitution. Here, I shall illustrate the point with a few exchanges with senators who chose to engage in constitutional dialogue.