The Tempting of America

by Robert H. Bork

  The groups were also putting pressure on senators who might be undecided. Senator Biden told the Philadelphia Inquirer in November 1986, “Say the administration sends up Bork and after our investigation he looks a lot like another Scalia, I’d have to vote for him and if the groups tear me apart, that’s the medicine I’ll have to take, I’m not Teddy Kennedy.”8 My record was in fact almost identical to Scalia’s. We voted the same way on the Court of Appeals 98 percent of the time, and on the one major case where we differed we did so because I favored a first amendment defense in a libel action. But seven days after my nomination, Biden was visited by representatives of the Leadership Conference on Civil Rights, the Alliance for Justice, the Women’s Legal Defense Fund, and the National Association for the Advancement of Colored People Legal Defense and Education Fund, and he at once stated that he would oppose the nomination and would lead the fight in the Senate.9

  At the NAACP convention in New York on July 6, opposition to the nomination became a litmus test for political support of candidates. Both former Governor Bruce Babbitt and Representative Richard Gephardt proclaimed their opposition. When Senator Daniel Moynihan told the convention he would reserve judgment until after the hearings, the reaction was swift. Hazel N. Dukes, an NAACP official, told the press, “I have the votes in New York to defeat him, when I get with his staff … I’ll get what I want. It’s strictly politics.”10

  The National Abortion Rights Action League held its annual convention in Washington on the weekend of July 11 and mapped a national campaign against confirmation.11 Senator Howard Metzenbaum spoke as delegates wearing “Borkbusters” buttons chanted their opposition. The League’s Washington lobbyist said it had drawn up a list of “target” senators, which included Howell Heflin, Dennis DeConcini, Robert Packwood, Daniel Evans, Lowell P. Weicker, Jr., and Arlen Specter. The League’s executive director told the New York Times that the group planned “a series of demonstrations and letter-writing and telephone campaigns during the August congressional recess in the home states of senators seen as important to the effort.”12 The director of the New York affiliate said that the group had already begun a coordinated telephone and mailing campaign with a computerized system under which members had authorized the organization to send telegrams in their names without prior consultation.

  People for the American Way mailed memoranda to editorial writers at nearly 1,700 newspapers.13 PAW also began to run a series of radio ads in Washington and print ads in the major newspapers across the country. These struck the themes that were pounded into the hearings and beyond. “The Senate should learn why Mr. Bork criticized a congressional ban on literacy tests used to prevent minorities from voting.”14 The ad stated that I had “written in favor of a Virginia poll tax, against equal accommodations for black Americans, and against the principle of one man—one vote.”15 None of these charges was true (see pp. 324-326, infra). It then hit what was to become the centerpiece of the campaign: “The Senate must know whether Mr. Bork will try to roll back the clock on the civil rights gains of the last three decades.”16 The ad discussed “privacy” and stated that I said “the state could prevent married couples from using contraceptives at home.”17 My criticism of the Griswold case (see Chapter 3, where I have criticized it again) inspired that remark.

  By the end of July, with more than six weeks to go to the first day of the delayed hearings, the group strategy could claim important successes. It had succeeded in creating the “sense of urgency” one spokesman said it needed, and it had spread the idea that the Senate should examine a nominee’s positions on a wide range of constitutional issues. More importantly, it had repeatedly defined “judicial philosophy” not as the nominee’s approach to constitutional interpretation and his conception of the role proper to judges but as simply a checklist of results that were to be assessed for political popularity. There was little or no response to this campaign. As the Washington Post reported later, “The hot, steamy days of July and August were filled with frantic activity—but only on the part of Bork’s opponents.”18

  Kennedy’s efforts with the AFL-CIO bore fruit in August when that organization put out a press release stating that I was:

  a man moved not by deference to the democratic process but by an overriding commitment to the interests of the wealthy and powerful in our society. He has never shown the least concern for working people, minorities, the poor or for individuals seeking the protection of the law to vindicate their political and civil rights.19

  My public record (see Chapter 16) demonstrates that there was not a word of truth in this litany. The AFL-CIO pledged an un-disclosed amount of money to oppose me. The week before, the American Federation of State, County and Municipal Employees (AFSCME) had contributed $40,000 to that effort, a contribution that was to be important.

  The groups of the left waged a massive mail fundraising and “educational” drive. People for the American Way alone sent out 4.34 million anti-confirmation letters,20 complete with opposition literature and preaddressed coupons to mail to senators. The letter stated that “the nomination of Judge Robert Bork … is one of the greatest threats to civil rights and civil liberties in three decades.”21 Of my philosophy of following the principles laid down by the ratifiers of the Constitution, readers were informed that “ ‘original intent’ is the ideological code word … to justify reversing 30 years of Supreme Court law in the areas of search and seizure, civil rights and church and state.”22 PAW stated that it needed $1 million for its campaign. $450,000 was to go for newspaper and broadcast activities, $200,000 for legal costs and direct lobbying, and $350,000 for “the mail and telephone campaign that will mobilize America.”23

  In September the executive director of PAW said that it had wanted to raise $1 million but that it now looked more like $2 million. A direct mail consultant for five groups said that groups opposed to me had probably raised $6 million and might well collect $12 million before the fight was over.24 It has been estimated that between $10 and $15 million was spent in the publicity campaigns against me. But perhaps the most shrewdly spent funds were the $40,000 donated by AFSCME. That contribution was used by others to finance a poll of 1,008 people, conducted from August 13 to August 17, to discover what issues troubled Americans most.25 This was used to frame the issues to be used against me, and made particular reference to the South. The memo prepared argued that the public campaign and the hearings themselves should be built around three central themes:

  Bork poses the risk of reopening race relations battles which have been fought and put to rest. Bork flouts the southern tradition of populism. And (perhaps most surprising to some) Bork poses a challenge to a very strong pro-privacy sentiment among southern voters.26

  These were indeed the themes stressed.

  The first theme mentioned—that I would reopen all the old civil rights battles—was stressed again and again and yet again. The Biden Report, issued on September 2, stated that “Judge Bork’s extensive record shows that he has opposed virtually every major civil rights advance on which he has taken a position….”27 The Report also converted my remarks some sixteen years earlier about advocacy of law violation into opposition to civil rights.

  The thrust of Judge Bork’s theory is plainly directed at civil disobedience. Had his theory been the governing rule in the 1960s, the right of Martin Luther King, Jr. to advocate sit-ins at lunch counters segregated by law would have been left to the discretion of each legislature or town council. The same would have been true of advocacy of boycotts, marches, sermons and peaceful demonstrations—the tools that made possible the peaceful and lawful transformation in the South.28

  Here, as elsewhere, the Biden Report so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility.

  The level of hysteria attained is shown by the Western Union priority letter sent on August 31 by the director of the American Civil Liberties Union. It contained statements in full capitals such as: “DETAIL
ED RESEARCH REVEALS BORK FAR MORE DANGEROUS THAN PREVIOUSLY BELIEVED … WE RISK NOTHING SHORT OF WRECKING THE ENTIRE BILL OF RIGHTS … HIS CONFIRMATION WOULD THREATEN OUR SYSTEM OF GOVERNMENT…. TIME IS SHORT…. URGE YOU TO RUSH EMERGENCY CONTRIBUTION AT ONCE.”29 It is, in a perverse way, flattering to be regarded as so powerful as to be able to override eight other Justices and single-handedly wreck the entire Bill of Rights as well as the system of government. I assume the contributions were forth-coming.

  People for the American Way, an organization founded and apparently guided by Norman Lear, was particularly energetic. To give merely one example of its work, for three weeks, prior to and during my testimony before the Senate Judiciary Committee, PAW ran sixty-second television spots featuring the easily recognizable voice of Gregory Peck.30 Senator Biden later told the Senate that the ad ran eighty-six times and also received extensive media coverage of its own, coverage which, of course, repeated the charges made.31 Peck, in a deep, sonorous voice, informed Americans that I “defended poll taxes and literacy tests, which kept many Americans from voting.”32 The implication was as clear as it was false: I favored keeping blacks away from the polls.

  In any event, the effort to frighten black voters succeeded. They heard only one side of the story, and that from leaders they respected. As a leader in one of the groups told the New York Times, with some pride, “Black voters got the message quickly and acted on it.”33 As the same story in the Times put it, “a powerful lever was pulled when Judge Bork’s opponents campaigned on the charge that he would ‘turn back the clock’ on civil rights.”34 No one wants to reopen old wounds, turn back the clock on civil rights, and so Southern whites as well as blacks were frightened of the prospect, which they were told was real, that I would do those things. People for the American Way ran an advertisement on radio and in newspapers that said: “The Senate should learn why Mr. Bork criticized a congressional ban on literacy tests used to prevent minorities from voting.”35 This was as false as the Gregory Peck ad.

  The Biden Report also led the way with charges about my alleged hostility to women. “Judge Bork Has Indicated That The Constitution Does Not Protect Against Mandatory Sterilization”36 and “Judge Bork Has Argued That Visitation Rights Of Non-Custodial Parents Are Not Constitutionally Protected.”37 Neither of those assertions was true. I have never said anything about mandatory sterilization or its constitutionality and, in a case involving visitation rights, had thought it unnecessary to reach the constitutional issue in order to uphold the rights.

  The National Abortion Rights Action League ran an advertisement entitled “What women have to fear from Robert Bork.” “Senate confirmation of Robert Bork to the Supreme Court might cost you the right to make your most personal and private decisions. His rulings might leave you no choice—in relationships, in childbearing, in your career. He must be stopped. Tell your Senators. Our lives depend on it.”38 The worst that could have happened to the women the League was trying to terrify was that abortion would once more have become a subject for state legislatures to govern. The rest is simply unintelligible. Planned Parenthood’s ads accused me of “sterilizing workers.” That, as shown by the discussion in Chapter 16 of the case referred to, was as flat a falsehood as could be imagined, except for the one next described.

  My favorite accusation was contained in Planned Parenthood’s full page advertisement that ran in newspapers across the country to inform the public that I was “an ultraconservative judicial extremist” who “uses obscure academic theory.”39 The theory is hardly obscure since Madison, Jefferson, and Story adhered to it, but it may certainly be obscure these days in the academy. The ad went on to misrepresent my academic writings and judicial decisions but reached a crescendo when it told Americans that I believed people could not choose their own relationships or living arrangements without fear of government intrusion. Planned Parenthood supported that remarkable assertion with the following: “Bork upheld a local zoning board’s power to prevent a grandmother from living with her grandchildren because she didn’t belong to the ‘nuclear family.’ Is this the sort of close-minded extremism we want on the Supreme Court?”40

  I knew the case they were talking about. It was Moore v. City of East Cleveland,41 and I was surprised to learn that I had ruled against the grandmother. The case was not heard by the court on which I sat but by a state appellate court for Cuyahoga County in Ohio. It was reviewed by the Supreme Court of the United States, and decided in favor of the grandmother, in 1977, five years before I even became a judge. Not only didn’t I decide the case, I have never written about it or even discussed it. I can only suppose that Planned Parenthood was applying the familiar rule that equity regards as done that which ought to have been done. In their view, if I didn’t make that ruling, I should have.

  Several advertisements, and a report issued by the Feminist Men’s Alliance, stated that I had testified before a Senate subcommittee in favor of the Human Life Bill.42 The bill declared that human life began at conception and its object was to make it illegal for the states to tolerate abortions since such operations would be the deprivation of life without due process of law. Other publications expressed doubt about me on the opposite ground, that I had testified against the bill, which at least was true.

  The record for deception, however, was probably established, one hopes for all time, by People for the American Way. Aside from its televised Gregory Peck spots, the organization ran a full-page ad on the day my hearings began. The ad, engagingly entitled “Robert Bork vs. The People,” informed readers of my various depravities under boldface titles: “Sterilizing Workers”; “No Privacy”; “Big Business Is Always Right”; “Turn Back The Clock On Civil Rights?”43 These were the themes stressed especially by Senators Kennedy and Metzenbaum. Metzenbaum pressed the subject of sterilization with such manic intensity that even viewers who knew the facts might almost have believed what he was saying. The ad’s explanation was admirable for terse deceptiveness.

  A major chemical company was pumping so much lead into the workplace that female employees who became pregnant were risking having babies with birth defects. Instead of cleaning up the air, the company ordered all women workers to be sterilized or lose their jobs. When the union took the company to court, Judge Bork ruled in favor of the company. Five women underwent surgical sterilization. Within months, the company closed the dangerous part of the plant. And the sterilized women lost their jobs.44

  Senator Metzenbaum at the hearings a few days later stated “I cannot understand how you as a jurist could put women to the choice of work or be sterilized.”45 What he would not understand, and would not have viewers understand, was, as shown in Chapter 16, that I had done nothing even resembling his accusations. Long after the vote, when he ran for reelection in Ohio, Metzenbaum continued saying that I favored forced sterilization of women workers.

  Since I had criticized the general and undefined “right of privacy” invented in Griswold v. Connecticut,46 opponents of my confirmation decided to charge that I did not think Americans should enjoy privacy. To make the charge effective, it was necessary to separate the right of privacy the Court invented from the purposes for which that right was actually used, creating a right to sell contraceptives, a right to abortion, and to urge a constitutional right to homosexual conduct. As Senator Biden told the New York Times, it was critical to the campaign against me that abortion not become a central issue in the debate.47 Much of the campaign before and during the hearings was therefore devoted to asserting that I thought married couples had no right to privacy in their bedrooms. A full-page ad by Planned Parenthood informed the public that “Robert Bork is an extremist who believes you have no constitutional right to personal privacy.”48 From the charges made, a reader might reasonably have concluded that I wanted to sterilize the American people and then follow them into their bedrooms anyway to make sure they did not use contraceptives.

  The Biden Report asserted that “Judge Bork’s Opinions Show A Decidedly Pro-Bu
siness Pattern,” and “Judge Bork’s Opinions On Labor Issues Have Markedly Favored Employers.”49 In my book, The Antitrust Paradox,50 I argued that the only proper purpose of the antitrust laws was to promote the welfare of consumers. Biden’s group attempted to make that position seem actually hostile to consumers.

  It is important to recognize the special sense in which Bork uses the phrase “consumer welfare.” It is a technical concept that relates to efficiency in an economy-wide sense. For example, if a practice resulted in efficiencies that led solely to greater profits for manufacturers, Judge Bork would call that “consumer welfare” even though consumers as a group paid higher prices.51

  That, as will be seen in Chapter 16, was not merely false but an economic impossibility.

  Ralph Nader’s Public Citizen Group described as pro-business an opinion of mine that I had thought came out for the union. The union had refused to provide a lawyer for a nonunion employee when he was threatened with dismissal. A government agency tried to punish the union for a failure of representation. In a split decision, the panel held for the union, and my opinion held that the duty of representation was confined to matters covered by the collective bargaining contract, which this matter was not, and hence the union won. In order to give me a high pro-business batting average, Public Citizen classified the opinion as “pro-business” because, as they put it, unions are in the “ ‘business’ of representing workers.”52 It also treated as “pro-business” a case in which I agreed that an individual ranch owner could collect damages for the government’s intrusion on his land so as to make the land in large part unusable.53

  So pervasive and intense was the politicization of the confirmation process that the American Bar Association, through its Committee on the Federal Judiciary, became a player in the game. The Department of Justice has for some years referred the names of judicial nominees to the committee for an assessment of each nominee’s “competence, integrity, and judicial temperament.”54 It was understood that those terms did not authorize the committee to pass judgment on judicial philosophy or politics.55 When President Reagan nominated me to the Court of Appeals for the District of Columbia Circuit, commonly said to be the second most important court in the nation, the ABA Committee unanimously gave me its highest rating. I expected no difficulty when nominated to the Supreme Court since I had not changed. But the committee had. To my surprise, I was told there would be several adverse votes. I asked why and was told that the committee now included members of groups vociferously opposed to me. They had been put on the committee, it was said, to ensure “political balance.” But if the committee was to judge only professionalism and not philosophy, why was there a need for political balance? In the event, ten members of the committee again gave me the highest rating, one voted “not opposed,” and four voted that I was unqualified on grounds of “judicial temperament.” Persons casting negative votes were not identified but those familiar with the committee were pretty sure who they were. One committee member was also a member of the Democratic National Committee Finance Committee and a supporter of and contributor to Senator Joe Biden’s campaign for the Democratic Party’s presidential nomination. He remained on the committee and voted on my nomination after Biden had announced he would lead the fight against me. The split vote on the committee was extremely damaging to my nomination since the judgment was nominally about professionalism. In fact, according to the ABA’s president, the dissenters disagreed with my “views respecting constitutional principles or their application, particularly within the ambit of the 14th Amendment.”56 Thus, my substantive views of the law were converted by a committee minority into a lack of “judicial temperament.”