The Tempting of America

by Robert H. Bork

  III

  THE BLOODY CROSSROADS

  On July 1, 1987, I stood beside President Ronald Reagan in the press room at the White House while he announced to the nation that he would place my name in nomination for the position of Associate Justice of the Supreme Court of the United States. The President’s statement was brief:

  Well, it’s with great pleasure and deep respect for his extraordinary abilities that I today announce my intention to nominate United States Court of Appeals Judge Robert H. Bork to be an Associate Justice of the Supreme Court.

  Judge Bork is recognized as a premier constitutional authority. His outstanding intellect and unrivaled scholarly credentials are reflected in his thoughtful examination of the broad, fundamental legal issues of our times. When confirmed by the Senate as an appellate judge in 1982, the American Bar Association gave him its highest rating: “exceptionally well qualified.” On the bench, he has been well prepared, evenhanded, and openminded.

  In taking this action today, I’m mindful of the importance of this nomination. The Supreme Court of the United States is the custodian of our Constitution. Justices of the Supreme Court must not only be jurists of the highest competence; they must be attentive to the specific rights guaranteed in our Constitution and proper role of the courts in our democratic system.

  Judge Bork, widely regarded as the most prominent and � ntellectually powerful advocate of judicial restraint, shares my view that judges’ personal preferences and values should not be part of their constitutional interpretations. The guiding principle of judicial restraint recognizes that under the Constitution it is the exclusive province of the legislatures to enact laws and the role of the courts to interpret them.

  We’re fortunate to be able to draw upon such an impressive legal mind, an experienced judge and a man who already has devoted so much of his life to public service. He’ll bring credit to the Court and his colleagues, as well as to his country and the Constitution.1

  If the President overstated my judicial virtues, we did not have to wait long for an overstatement in the other direction. We left, and I went to Chief of Staff Howard Baker’s office to make telephone calls to Senate leaders and to Justice Lewis Powell, who had just announced his departure from the Court and to whose seat I had been nominated. A television set was on in the office, and within forty-five minutes we watched Senator Edward Kennedy deliver a nationally televised speech from the floor of the Senate.

  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, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim or [sic] 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.2

  We were incredulous. Not one line of that tirade was true. It had simply never occurred to me that anybody could misrepresent my career and views as Kennedy did. Nor did it occur to me that anybody would believe such charges. The conventional wisdom in Washington then and for some time afterward was that Kennedy had made a serious tactical blunder. His statement was so outrageous that everyone said it helped rather than hurt me. I should have known better. This was a calculated personal assault by a shrewd politician, an assault more violent than any against a judicial nominee in our country’s history. As it turned out, Kennedy set the themes and the tone for the entire campaign.

  Lionel Trilling once wrote of the bloody crossroads where politics and literature meet.3 There is, as I was soon to learn, an even bloodier crossroads where politics and law meet. The next three chapters are about my experience there. It is important to describe the way the campaign against me was conducted and the seemingly ceaseless torrent of falsehoods about my views and record. It is important not for my own vindication (I have discovered that millions of Americans understand that they were lied to) but because of what the story tells about the people and groups who resorted to such tactics, of what it says about the desperation of the American left not only to continue to influence the direction of the courts but to prevent the articulation from our highest bench of the ideas I have articulated in the past and have explained once more in this book. The story, that is, illuminates not only the character of the left but the kind of constitutional rewriting they want judges to do. In that regard, the story lays bare the authoritarian character of that movement. There are few things more important for the American people to understand.

  14

  The Nomination and the Campaign

  My nomination was, as I have said, 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. To describe the battle, however objectively, necessarily involves recounting personal experiences and reliving emotions. This is not an autobiography, but it may help to place the entire episode in at least the framework of a personal context.

  Like many young people, I was drawn to the law because it seemed a calling in which one could remain intellectually active for a full lifetime. A professor of humanities who had studied law, Henry Rago, told me that law was philosophy carried into the market-place. Holmes and Brandeis offered models for what I and others thought a life in the law could be. The choice was between law and journalism, but, for reasons not relevant here, I chose to attend the law school of the University of Chicago. In June of 1952, upon returning from active duty in the Marine Corps and before the third year of law school, I married a college student, Claire Davidson. It was a very happy marriage, as I knew and as Claire told me when twenty-eight and one-half years later she knew that her death was imminent. A year working at the school on antitrust theory and then eight years in private practice, seven of them as associate and then partner with the Chicago firm of Kirkland & Ellis, followed graduation. During this time Claire and I had three children. Robert, Jr., was born on June 24, 1955; Charles on October 12, 1958; and Ellen on April 3, 1961. To practice with the Kirkland firm was to experience the practical aspect of the profession at its best. I made, and retain, some of my best friends in those years. After a time, however, the cases at the firm began to look alike, and I decided I wanted a rather broader intellectual life in the law. Yale law school offered me an associate professorship in 1962 and made me a professor in 1965. That was a period of great intellectual stimulation, and my time was divided between a full and happy family life and a busy schedule of teaching and writing, first in the field of antitrust and then in constitutional law. After his reelection in 1972, President Nixon offered me the post of Solicitor General of the United States, and the family moved to Washington in the spring of 1973. Most people are not very sure about what the Solicitor General does. Located in the Department of Justice, the Solicitor General is the chief legal officer of the United States. His duties include representing the United States before the Supreme Court.

  My term in the office included some duties not listed in that job description, among them writing the briefs against Vice President Spiro Agnew, which Attorney General Elliot Richardson was kind enough to say may well have had the effect of persuading Agnew to plea bargain and leave the vice presidency rather than litigate further, and the firing of Special Prosecutor Archibald Cox in what was known as the Saturday Night Massacre. These are stories that may be left for another time. Because of what I regarded then and regard now as the peculiar taste in presidents the American people displayed in 1976, I left the job on January 20, 1977, and that summer the family moved back to New Haven. (The American people later came to agree about their choice and repaired matters in 1980). Claire had contracted cancer in 1971. By this time she was growing quite weak, and I spent all of my time, when not teaching, at home. After a struggle of nine and one-half years, she died in December 1980. The doctors were amazed that she had lived so long, and I am conv
inced that only her determination to see our children safely into adulthood kept her alive. Though I had known it was inevitable from the beginning, her death was devastating to me. I could not stay at Yale. The children were gone from home; my best friend, Alex Bickel, who made academic life a joy for me, had himself died of cancer in 1974. New Haven had too many shadows. I left and joined the Washington office of Kirkland & Ellis in the summer of 1981.

  Very soon, however, the Administration approached me about accepting a judgeship on the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit is not the local court of appeals for the District of Columbia. Most of the courts of appeals are numbered, the Second Circuit, for example, sits in New York City and hears appeals from the district courts, which are trial courts, located in the states of New York, Connecticut, and Vermont. The D.C. Circuit hears appeals from the district court located in the District of Columbia but also has a heavy workload reviewing the decisions of federal agencies, and the agency cases may arise from disputes anywhere in the United States. Since I had just rejoined Kirkland & Ellis after an interlude of nineteen years, I said no to the judgeship to the first two officials who approached me. But while I was back in New Haven to oversee the last of the moving, I received a lengthy telephone call from a very insistent Deputy Attorney General Edward Schmults and then a call from Attorney General William French Smith. My children finally decided the issue; they were unanimously in favor of my becoming a judge. I accepted and was sworn in on February 12, 1982. One of the judges asked why I had decided to leave practice for the bench. I told him that having just lost two cases, I decided I was losing my fastball and had better take up umpiring.

  The years on the D.C. Circuit constitute a story worth telling, but not in this book. I was the first Reagan appointee on a very liberal court. There were then, I think, ten judges on the full court, and we sat in panels of three to hear appeals, except when a panel decision seemed both wrong enough and important enough to convene the entire court for an en banc rehearing. Relationships were quite cordial but gradually became less so as other Reagan appointees followed and achieved a majority on the full court. President Reagan has been accused of appointing judges with a political agenda, but that was most certainly not the case. He was committed to the idea that judges should not make up law but should interpret law. William French Smith barely knew me and had no idea of my personal views on most of the divisive issues of the time, but he knew that my idea of judging corresponded to his and Reagan’s.

  In June 1982 I had my great piece of good luck, the first, it seemed to me, in a long time. A Washington “think tank” called the Ethics and Public Policy Center had asked me to speak at one of its evening events twice before, and I had begged off. The third time I accepted. One member of the staff attended each event, and this time it was Mary Ellen Pohl’s turn. She was working on Catholic studies at the Center and, until a year or so before, had been for fifteen years a nun in the Order of the Sacred Heart. We were married on October 30 in St. Matthew’s Cathedral. Had I accepted either of the previous invitations to speak, we would never have met. This, too, has been an extremely happy marriage.

  By the spring of 1987, I had developed serious doubts about remaining on the court of appeals for the remainder of my career. There were some very interesting cases with considerable legal significance, but a great part of our docket consisted of regulatory agency cases, many of which contained no significant legal issues to be explored and explicated. Though these cases were factually complex, in the end they often involved little more than examining the prudential judgment of one agency or another to make sure that it was not arbitrary. I liked judging very much—the oral arguments in the courtroom, particularly on days when both the lawyers and the judges were in good form, the discussions with my fellow judges, and working on opinions with my clerks. But I wanted engagement with larger ideas than the run of cases then brought before us. Mary Ellen and I discussed the matter with increasing frequency, and I finally chose a course that would leave my options open into 1988. Each judge has three clerks and usually hires them in the spring of the year, not for the coming fall term but for the one after that, about fifteen to eighteen months in advance. I decided not to hire clerks in the spring of 1987 since that would commit me to stay for the year they served, to the summer of 1990. I was confident that, if the decision was to continue as a judge, I could hire good clerks, perhaps from new recruits at law firms, in the spring of 1988. As it turned out, events made the decision for me.

  At 10:00 A.M. on Friday, June 26,1987, Associate Justice Lewis Powell held a press conference to announce his resignation as an Associate Justice of the Supreme Court of the United States. Powell, a courtly, soft-spoken man, had a distinguished career on the Court. As Solicitor General of the United States I had of course often argued before the Court. Powell’s questions were invariably to the point, courteously put, but not so frequent as to prevent counsel from developing his argument in his own way.

  The question I appreciated most came at the end of my argument for the constitutionality of the death penalty. A majority of the Court a few years back had held that capital punishment had become “cruel and unusual” and hence forbidden by the eighth amendment. When the issue came back in five challenges to new state death penalty statutes, I brought the federal government into the case as amicus curiae, or friend of the Court, to support the constitutionality of the laws. I asked for forty-five minutes, an unusually long period for one lawyer, particularly counsel for an amicus curiae, but the Court granted the time. Since the five state attorneys general stressed the horrors of the crimes involved, I argued the constitutional issues. No matter how much time he is given, counsel would always like more, but the Chief Justice will not grant an extra minute unless the lawyer is responding to a question from the bench. (There is a legend that Chief Justice Charles Evans Hughes once cut a lawyer off in the middle of the word “if.”) My time expired and I was turning from the lectern when Justice Powell said he would like to ask me a question. Controlling his emotion over the incidence of murder with some difficulty, he recited the number of killings annually in America and then asked me to comment. It was a deliberately given license to make any additional points I wished in the form of a comment on his statement. I have never heard a question from the bench I liked better.

  When Powell resigned in 1987, I had no particular expectation of being nominated. Not long after the resignation, four other judges met in my chambers to draft a joint dissent from our court’s majority decision not to rehear four cases en banc. One of the judges asked if I thought I would be nominated, and I said there was now a well-entrenched tradition of passing me by and I thought not. When, at the time of my appointment as Solicitor General in 1973, I was first mentioned in the press, it seemed an unimaginably grand prospect. By the time I left that post almost four years later, familiarity with the Court’s work had considerably reduced the glamour of the possibility. I had come to think of a seat on the Court as a position from which one could demonstrate the proper method of judging and articulate its principles in opinions that would have to be studied by the profession and, in particular, by law students. When Powell’s announcement came, it seemed to me likely that the nomination would once more go elsewhere, but that thought did not disturb me.

  I have since learned that the Department of Justice was actively working for my nomination, and, in the White House, Ken Cribb, the Assistant to the President for Domestic Affairs, was vigorous on my behalf. But at the time, I knew nothing of this.

  The first inkling of any serious possibility came in a telephone call from the Counsel to the President, A. B. Culvahouse, on June 30, asking me to meet with him at 6:00 A.M. the next day. He wanted a place where we would not be observed by the press, and the “safe house“ he chose was 716 Jackson Place, a row house facing Lafayette Square, which is across Pennsylvania Avenue from the White House. Former presidents often stay at 716 when visiting Washington. Th
e next morning a young lawyer on Culvahouse’s staff answered my knock, took me to a third-floor sitting room, and went into the kitchen to make coffee. Soon Culvahouse arrived, the aide left, and the two of us, now alone in the house, began an interview at the table in the third-floor dining room. Culvahouse, a capable and congenial young man, said that others were also being interviewed and that his purpose was to bring up to date the information developed by the Federal Bureau of Investigation when I had been nominated to the Court of Appeals. He had perhaps twenty questions that primarily concerned personal morality, questions about money, drugs, sex, wife or child abuse, and the like. It seemed somehow characteristic of Washington that many of these transgressions had gained proper names, as in, “Do you have the [name of a prominent person] problem?” After a number of questions, I said, “Look, I have led a very dull life.” Culvahouse said, “Good. That’s the way we like it.” It must have been around 8:00 A.M. when I went to my chambers in the federal courthouse.

  Sometime before noon, Howard Baker, Ronald Reagan’s chief of staff, telephoned to say that the President would like to meet with me that afternoon to discuss nominating me to the Supreme Court. If he decided to go ahead, the announcement would be made right after the meeting. Once more, the object was to keep the press in the dark. The strategy chosen this time, however, left not only a good deal but almost everything to be desired. As arranged, about 1:30 P.M. my secretary, Mrs. Judy Carper, drove me to a street corner a few blocks from the courthouse in an area where nobody was likely to know me. I waited there for several minutes because John Tuck, an aide to Howard Baker, had gotten stuck in traffic. He finally picked me up in his own station wagon, which unfortunately, on that hot and humid Washington day, lacked any air conditioning. Tuck drove a roundabout route and came up Seventeenth Street to enter the gate to the Old Executive Office Building. He drove through the courtyard and into West Executive Avenue, a short street, guarded at both ends, that runs between the OEOB and the White House. Its disadvantage for security purposes is that reporters standing at the gates at both ends can easily see who gets in and out of cars. So, after our elaborate maneuvering, the press knew what was about to happen before we even got into the White House. Matters would have been no less secret, and I wouldhave been a good deal more comfortable, if I had taken a taxi to the front door.