The Tempting of America

by Robert H. Bork

  The crux of the matter is that I wish to speak, write, and teach about law and other issues of public policy more extensively and more freely than is possible in my present position. As a sitting judge on a very busy court, I cannot devote the time and energy I wish to public discourse. Moreover, constraints of propriety and seemliness limit the topics a federal judge may address and the public positions he may advocate. My experience as your nominee for Associate Justice of the Supreme Court of the United States made me acutely aware of the restrictions on my ability to address issues. For several months various highly vocal groups and individuals systematically misrepresented not only my record and philosophy of judging but, more importantly, the proper function of judges in our constitutional democracy. This was a public campaign of miseducation to which, as a sitting federal judge, I felt I could not publicly respond. What should have been a reasoned national debate about the role of the courts under the Constitution became an essentially unanswered campaign of misinformation and political slogans. If, as a judge, I cannot speak out against this attempt to alter the traditional nature of our courts, I think it important to place myself where I can.

  You nominated me to my present court and to the Supreme Court precisely because I do speak for the traditional view of the judge’s role under the Constitution. It is a view that goes back to the founding of our nation and was ably articulated by, among others, James Madison, Thomas Jefferson, Alexander Hamilton, and Joseph Story. It has been espoused by the greatest judges in our history. That view, simply put, is that a judge must apply to modern circumstances the principles laid down by those who adopted our Constitution but must not invent new principles of his own.

  A few years ago I said:

  In a constitutional democracy the moral content of law must be given by the morality of the framer or the legislator, never by the morality of the judge. The sole task of the latter—and it is a task quite large enough for anyone’s wisdom, skill, and virtue—is to translate the framer’s or the legislator’s morality into a rule to govern unforeseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist.

  That was my view then. It is my view now. Though there are many who vehemently oppose it, that philosophy is essential if courts are to govern according to the rule of law rather than whims of politics and personal preference. That view is essential if courts are not to set the social agenda for the nation, and if representative democracy is to maintain its legitimate sphere of authority. Those who want political judges should reflect that the political and social preferences of judges have changed greatly over our history and will no doubt do so again. We have known judicial activism of the right and of the left; neither is legitimate.

  My desire to participate in the public debate on these matters is what prompts my decision to leave the bench at this time. I had considered this course in the past but had not decided until the recent confirmation experience brought home to me just how misfocused the public discourse has become. A great many supporters have written to urge that I continue in public service. The decision I have made will, I believe, allow me to do just that. My views on these matters are of long standing. Because of my experience as your nominee, I am now in a better position to address the issues than ever before.

  Though I am sure this decision is the correct one, I find, as the time of my departure draws near, that the prospect of leaving the federal judiciary fills me not merely with reluctance but with sadness. Any lawyer should be deeply honored to be a federal judge and to serve with a nationwide corps of the most dedicated men and women one is likely ever to meet. The work of an appellate judge may be the aspect of the legal profession for which I am best suited. I have actively enjoyed the day-to-day work of judging—the exchanges with lawyers at oral argument, the discussions with colleagues and clerks in arriving at a correct decision, and the effort to craft the best opinion one can. Trying with all one’s capacities to do justice according to law is a deeply satisfying experience, both intellectually and emotionally. I will miss it more than I can say. I find some consolation in leaving behind a record of which I believe I may be proud, and one by which I am content to be judged.

  In choosing a date for my departure, I have considered, among other factors, the desirability of leaving time for the nomination and confirmation of my successor as well as the importance of beginning my new work without undue delay. It will, however, take a few weeks to complete work on hand. I ask, therefore, that you accept my resignation as Circuit Judge, United States Court of Appeals for the District of Columbia Circuit, effective at the close of business, Friday, February 5, 1988.

  With deep gratitude for your confidence in me, for appointing me to this court and nominating me to the Supreme Court, I will always remain

  Yours truly,

  Robert H. Bork

  The President responded with a very warm letter accepting my resignation.

  January 14, 1988

  Dear Bob:

  It is with deep sadness that I accept your decision to resign as United States Circuit Judge for the District of Columbia Circuit, effective February 5, 1988. In my many appointments to the Federal bench, I have attempted to select men and women of uncommon intellect, unimpeachable integrity, and a strong, steady temperament—men and women with special gifts for communication and reasoning and with an abiding courage of conviction. You, Bob, epitomize these virtues at their very finest—which is why I turned to you to fill Justice Lewis Powell’s seat on the Supreme Court.

  The unprecedented political attack upon you which resulted in the regrettable Senate action was a tragedy for our country. All Americans are the poorer today for not having your extraordinary talents and legal skills on the High Court.

  And yet, as I read your letter of resignation, I cannot help but feel a warm admiration for the difficult decision you have made. There is, as you state, a lively public debate brewing in this country, fueled in no small part by your confirmation hearings—a debate over the proper role of the judiciary in our system of representative self-government. That debate has advocates who view the courts and the Constitution as mere instruments for political advantage. Effective advocacy of a more traditional approach to the judicial function occurs too infrequently. Your recent experience, against a background of unswerving commitment to the doctrine of judicial restraint, makes you uniquely well suited to carry that debate forward.

  For your many years of dedicated public service, especially the last six on the Court of Appeals, your country and I thank you. For your courageous adherence to conviction and refusal to forsake your ideals, your country and I salute you. For daring to embark on this new course in selfless service of the cause of truth and justice in the public arena, your country and I remain in your debt.

  While your public service on the Court of Appeals will be sorely missed, I am confident that your writings and other contributions as a private citizen are destined to have a most profound and lasting impact on the Nation.

  Best wishes for success in your future endeavors.

  Sincerely,

  /s/ Ronald Reagan

  I left my chambers for the last time on a Friday. Just as I was preparing to go, a number of my former clerks surprised me by coming in to throw a small departure party. That was a joy because my relationships with my clerks were one of the happiest aspects of judging. On Monday, I assumed my new position as the John M. Olin Scholar in Legal Studies at the American Enterprise Institute, a scholarly Washington think tank. AEI’s scholars include (to mention only those I know at least moderately well) Walter Berns, Christopher DeMuth (the president), Suzanne Garment, Robert Goldwin, Jeane Kirkpatrick, Irving Kristol, Michael Novak, Herbert Stein, and Ben Wattenberg. There are others, equally prominent, whom I intend to get to know when this book is done. Being at AEI is like being on a first-rate university faculty, in the days before politicization of the campuses, but without the necessity
of grading examinations.

  In the time since I left the court, I have spoken to audiences all around the country. Mary Ellen and I have enormously enjoyed the people we have met and the warmth with which they have greeted us. People come up to me everywhere, in airports, hotel lobbies, on the street, to express sympathy or outrage at the process I have been through. Fortunately, only the friendly ones come up. I cherish those encounters, but there is one I cherish above all others. I was standing in a bookstore in Chicago when a woman came up behind me and tapped me on the shoulder. I turned, and she said very earnestly, “Sir, we are heeding your warnings.” Puzzled, I thought for a moment, and asked, “What warnings?” She said, “You’re the Surgeon General.” Such is the capacity for even quite dissimilar beards to confuse identification. Dr. Koop, I am told, is frequently stopped by strangers who tell him they are sorry he didn’t make it.

  *A future Attorney General and former Governor of Pennsylvania, Dick Thornburgh, also testified for me. Justice John Paul Stevens publicly endorsed my nomination at least twice and Justice Byron White allowed a news commentator to state that White favored my confirmation. The names of these and other persons who supported the nomination demonstrate the emptiness of the claim that my views were “outside the mainstream”; these were people whose careers have defined the American legal mainstream.

  16

  The Charges and the Record: A Study in Contrasts

  It is important to understand the degree to which the charges leveled against me during the confirmation battle were false and known to be so by those who made them. That is so because, in the struggle for dominance in the legal culture and in the general culture, this episode is a revealing case study. The flat impossibility of reconciling the accusations hurled with the actual record demonstrates the nature of the forces ranged on the other side of those struggles. They are relentlessly disingenuous in advancing their agenda. In the guise of “protecting our civil rights,” an idea that most Americans approve, they urge the courts to adopt as “civil rights” positions on a host of controversial issues that in fact divide public opinion and are nowhere to be found in the Constitution or the statutes of the United States—and which in fact, the American people will not allow their legislators to enact.

  The charges reviewed here were made variously by Senators Biden, Kennedy, and Metzenbaum, the consultants who helped Biden put out his Report, the American Civil Liberties Union, People for the American Way, Planned Parenthood, the National Women’s Law Center, the National Organization of Women, the Feminist Men’s Alliance, Ralph Nader’s Public Citizen Litigation Group, the AFL-CIO, and many others.1

  Just as the left early on identified themes it would stress in the campaign against me, I shall organize this discussion around those same themes.

  The Civil Rights of Racial Minorities

  As we have seen, following my nomination the nation was treated to a host of charges that I was hostile to the civil rights of racial minorities, wanted to roll back the clock, and would reopen old wounds. How one Justice out of nine could wreak so much havoc was not explained. It was said that I had opposed every major civil rights decision on which I had taken a position and that I had always opposed civil rights “when it counted.”2

  The facts are otherwise. They are, in fact, so otherwise that it is hard to know where to begin. Perhaps as good a place as any is with Brown v. Board of Education.3 I have always supported the proposition that racial segregation by government is unconstitutional, and in the 1971 article of which so much was made4 I attempted to construct a rationale for Brown, one that the Court neglected, to show its legitimacy. It is true that I had criticized Shelley v. Kraemer,5 which invalidated private racially restrictive covenants (and I have done so again in this book, in Chapter 7), but then so have most legal scholars who have discussed the case.6 Most of the evidence for the assertion that I had opposed virtually all decisions advancing the rights of blacks came from criticisms after the fact in one sixteen-year-old article that was devoted to analyzing decisions that I thought had no constitutional rationale, only some of them involving minority civil rights. I continue to consider those cases examples of political impulse rather than legal reasoning. In fact, there are many cases favoring the rights of blacks that I have taught as correct in my constitutional law course, cases such as South Carolina v. Katzenbach,7 which upheld key provisions of the Voting Rights Act of 1965.

  Gregory Peck’s commercial, on behalf of People for the American Way, stating that I favored poll taxes and literacy tests, which had been used to keep black Americans from voting, was a particularly egregious falsehood. I have never said a word in favor of poll taxes. I did object to the ruling in Harper v. Virginia State Board of Elections,8 which struck down a small poll tax in a case where racial discrimination was not even alleged, thus rewriting the Constitution and overturning years of consistent precedent. Three Justices of the Supreme Court agreed that the majority decision was wrong—Hugo Black, John Marshall Harlan, and Potter Stewart.9 Fifteen years earlier, eight Justices took the position I did: Hugo Black, Felix Frankfurter, Robert Jackson, Stanley Reed, Harold Burton, Tom Clark, Sherman Minton, and Chief Justice Fred Vinson.10 I also objected to Katzenbach v. Morgan,11 not because it eliminated a literacy test, again in a case where racial discrimination was not charged, but because it allowed Congress to change the interpretation the Court had given to a constitutional provision by statute. Justices Harlan and Stewart took the same position I did.12 Dissenting in another case, so did Justice Powell.13 Indeed, for that same reason I testified against the Human Life Bill in 1981, because it attempted to overturn Roe v. Wade14 a decision for which I feel no sympathy whatsoever, by statute. (A number of conservatives were angered by that. The Feminist Men’s Alliance, on the other hand, issued a report stating, falsely, that I had testified in favor of the bill.) Similarly, in 1972, in a monograph supporting President Nixon’s bill to set some limits on busing, I noted that it could be supported by Morgan but refused to rely upon that rationale.15

  The statement that I favored poll taxes and literacy tests, with the strong implication that I did so because they had been used to keep blacks from voting, was, in all respects, a flat falsehood.16 People for the American Way has a good many lawyers; it is inconceivable this charge could have been made, and endlessly repeated, by mistake. I have no idea whether Mr. Peck knew then, or knows to this day, that the lines he read were false and can only have been deliberately so. At a guess, he probably trusted the people who handed him the script and believed what he intoned. Norman Lear, the founder of PAW, however, when questioned about that ad, said that he had reviewed it and was satisfied with it. He may well be satisfied with it; he can hardly believe that it was true.

  Aside from my earlier theoretical writings as a professor, there was the fact that I had an extensive public record on matters of racial equality both as Solicitor General of the United States and as a United States Circuit Judge. I will not repeat that record in detail since it may be found in published works by others, but it is worth noting that as Solicitor General I filed briefs in or argued a number of cases in favor of minority civil rights and never took a position less favorable to the minority than the position the Supreme Court adopted. The Court rejected some of my positions as too favorable to minorities. The National Association for the Advancement of Colored People filed briefs in ten cases in which I participated and agreed with my position in nine.17 As an appellate judge, I often voted for minority claims.18

  Many opponents of my confirmation argued that my public record meant nothing because as Solicitor General I upheld the position of the Administration and as a judge I was bound by Supreme Court precedent.19 No person of any legal sophistication could believe that. The Solicitor General has a great deal of discretion about the positions he takes, and I did not have to enter many of the cases I did. Moreover, in those cases where I felt bound to take a position I did not agree with, I sent a deputy to make the oral argument. In those year
s, I did that in almost all antitrust cases. But in the minority rights cases, when the United States was not an amicus curiae but a party, I did make the oral argument.20 The freedom of a judge is even greater. If the meaning of Supreme Court precedent was always clear, there would be no need for lower court judges; everybody would know the law. I sometimes voted for racial minorities and sometimes did not, because I thought the law sometimes supported the minority and sometimes did not.

  Enough has been said to show that the allegations of opposition to black and other minority civil rights were wholly false. If there was one thing that angered me about the campaign against me more than all others, it is that millions of black Americans were lied to and made to believe that I was their enemy in the courts. That charge, if one knew the record, could be made only by someone who believes that the minority claimant should always win regardless of the law, not by anyone who believes in law rather than political result so that the minority claimant wins when the law supports him and does not win when the law does not.

  The Civil Rights of Women

  The assertion that I am opposed to the rights of women was made again and again, and summarized by Senator Metzenbaum’s refrain that “the women of America” were afraid of me.21

  This part of the campaign was based upon my criticism of Roe v. Wade, my opinion in American Cyanamid,22 and my statements that the ratifiers of the fourteenth amendment did not intend to treat women as a special class deserving protection as they did intend with respect to blacks. In Chapter 4, I have shown once more why Roe is not supported by the Constitution. That conclusion has nothing to do with an attitude toward women, only with an attitude toward law. If it matters, many women are intensely opposed to Roe, so that it is impossible to say that any position with respect to that case is pro- or anti-women.