The Tempting of America
Page 39
The Democrats and one Republican, Arlen Specter, professed horror at the thought that a judge must limit his rulings to the principles of the actual Constitution. Joe Biden, the Chairman, would throw his arms up in the air and announce, “I have [rights] because I exist.”24 It did no good to tell him that might be true, but a judge was not empowered to enforce rights not to be found in law. Senator Simon, in a particularly nasty piece of innuendo, mentioned that he had recently read Taney’s Dred Scott opinion and said, “It sounded an awful lot like Robert Bork.”25 Since Taney employed, and probably invented, substantive due process, my views and his could not be further apart (see Chapter 1).
The hearings also illustrated the point that most senators would do well not to attempt to judge a nominee by engaging in a detailed discussion of legal doctrine. Whatever the “advice and consent” function of the Senate may legitimately encompass, prudence suggests that it not consist of an attempt to argue the outcome of specific issues. The only senator who engaged in that enterprise at the hearings was Senator Arlen Specter, who questioned me on the subject of the first amendment’s guarantee of freedom of speech. It is worth examination because Specter and others have said that this kind of examination should set a pattern for future confirmation hearings. We must hope that it does not, for our exchange produced a striking instance of a dialogue run amok. If the passage you are about to read seems not to make sense, that is probably because it doesn’t.
Since I had written that I did not think the first amendment, properly interpreted, protected pornography, Specter wanted to know if I disagreed with then Justice Rehnquist’s opinion in Jenkins v. Georgia,26 holding that the state could not convict a person for showing the movie Carnal Knowledge. I said I did not know the movie, but perhaps the Court had looked at it and decided it was not pornographic.27 In the discussion, each of us sometimes used the words “pornography” and “obscenity” interchangeably, as I explained at another point in the hearings. I had written that I thought pornography as well as its more extreme form, obscenity, did not deserve constitutional protection, that its availability should be left to the political community. But that was not what Specter was driving at. He had somehow gotten into his head the erroneous notion that something I had written meant that the Court could not decide for itself whether books or films are obscene or pornographic in the process of deciding whether they are to receive first amendment protection.
SENATOR SPECTER. The question, Judge Bork, is, you have a Georgia statute on obscenity, you have a jury verdict, you have a conviction, you have it upheld by the State Supreme Court, and then you have the U.S. Supreme Court, Justice Rehnquist saying first amendment protection stops that prosecution.
All of your writings say—and you affirm it here this afternoon—that the first amendment does not reach pornography or obscenity to stop majority rule in a State court determination. And I am saying to you that that pretty clearly places you at variance, at least on that issue, with Justice Rehnquist, or, I am asking you if it does.
JUDGE BORK. With respect, Senator, I think it does not at all, because merely because a particular State defines something as pornographic does not mean that the Supreme Court has to accept that definition.
In order to protect the first amendment, the Supreme Court has to apply a definition of pornography of its own. Otherwise, the States could define literary works, or even political speech as pornographic.
SENATOR SPECTER. Well, but you are then saying that it is appropriate for the Supreme Court to strike down a conviction on First Amendment grounds where it is pornographic.
JUDGE BORK. NO, no, Senator. I am not making myself clear. I will try to be clearer in what I say. The determination of what is pornographic for first amendment purposes has to be made by the Supreme Court, or by the lower Federal courts.
Otherwise, if you let a State’s definition of what is pornographic govern, things that are not pornographic, in a constitutional sense, might be banned.
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SENATOR SPECTER. Judge Bork, if you are saying that, then you are saying that the majority, Madisonian majoritarianism which you write about so extensively, does not apply in that situation. That we are not allowing the legislature to make a definition, a definition which a conviction is entered on, but that the Supreme Court has the authority, legitimacy—your term—to come in and upset that conviction.
JUDGE BORK. Senator, with respect, that is entirely consistent with my position on what I have called the Madisonian dilemma, and that is that the Supreme Court must, by applying the Constitution, define what things the majority may rule, and what things the majority may not rule, where the individual, or the minority, must be left freedom.
Now free speech is perhaps the most central freedom in the Constitution. That means that the Supreme Court, ultimately the Supreme Court, the Federal Judiciary, when it says pornography is not protected, it must make sure that what the State calls pornography is pornography, and that is why they are entitled to examine a State determination that “Carnal Knowledge” is pornography and to reverse it.
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SENATOR SPECTER. But your writings are exactly to the contrary, as recently as 1985.
JUDGE BORK. Senator, I do not understand. I am missing some aspect of this, because in 1985, I said the first amendment protection did not extend to pornography. All I am saying now is, that the Supreme Court must decide what is pornography, and what is not, in order to apply the first amendment protection.
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SENATOR SPECTER. But you have written that the Court does not have legitimacy in using the first amendment to interfere with what a State has done.
JUDGE BORK. Senator, I never said that the first amendment—the Court did not have a legitimate role, under the first amendment, to interfere with what the State has done. Now, the State may say we are regulating pornography, but it may be regulating things that the Supreme Court does not think are pornography. Therefore, the Supreme Court must make sure that it is pornography, before it allows the State to ban it.
SENATOR SPECTER. Judge Bork, with all due respect, I think you are putting the rabbit in the hat. The Supreme Court has to take the issue to decide what is involved. Now you have written, going back to the Indiana Law Review article, “There is no basis for judicial intervention to protect that variety of expression we call obscene or pornographic.”
Now you cannot have a determination as to whether it is obscenity or pornographic until the Court takes it up, but you say, flatly here, that there is no basis for judicial intervention.
Here Specter confused the idea that the Supreme Court should let the community decide whether it wanted to ban pornography, which I had expressed, with the notion that the Supreme Court could not even look at a case to determine whether what the community had banned actually should be classified as pornography, a position neither I nor anyone else had ever taken. The latter position would destroy the possibility of judicial review.
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JUDGE BORK. All right. The Court must protect speech that the first amendment covers. It must not protect speech that the first amendment does not cover and which a community wishes to outlaw. A community’s definition, or characterization of a particular magazine, or book, or movie as “pornographic” cannot be taken as final.
The Supreme Court must have its own definition of what is pornographic, and, indeed, it does, and then look at the book, or the speech, to see whether it is pornographic, and hence, subject to State regulation.
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SENATOR SPECTER. And the thrust of your writings have been that the Court may not make those interpretations, absent some specific constitutional right. That it is really the same area of judicial action, and Supreme Court determination, Supreme Court legitimacy.
JUDGE BORK. Senator, in the pornography case we are talking about, there is absolutely no problem, because the Supreme Court has the first amendment and its guarantee of free speech and free press to apply, and it
must apply it.
So that there is no question of judicial legitimacy in the first amendment area. There is a constitutional provision which must be applied.
SENATOR SPECTER. But it all depends on whether the Court, legitimately, may apply the first amendment to pornography cases, and you have said that they should not.28
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This exchange was longer than the portion reproduced here but the rest merely repeated and repeated the central confusion. When I said the Supreme Court should allow local communities to control pornography, Specter could not grasp my further statement that the Court would have to define what is pornography for first amendment purposes and take cases to make sure that the community was not banning non-pornographic works. He seemed to think my position was that once a state legislature called something pornography the Court was bound by that.
Senator Specter spent hours attempting to demonstrate that he was engaged in a weighty discussion of constitutional theory, but episodes like this made it apparent that he had at best quite erroneous notions of my views on the Constitution and the relationship of judicial supremacy to democracy. Shortly after that, we got into a discussion of Bolling v. Sharpe,29 the companion case to Brown30 that outlawed segregated schools in the District of Columbia. I explained, as I have explained in Chapter 3, that the segregation laws of the District had been written by Congress, which governed the District, and that the equal protection clause, under which Brown had been decided, was not applicable.31 The Court, however, invented a new part of the fifth amendment’s due process clause, importing into that clause an equal protection component. Bolling has been cited ever since for having accomplished that.32 Specter denied it.33 He was simply wrong on a point that is clear to every constitutional lawyer. But the point of his insistence turned out to be a desire to establish that it was common, and thus in his view proper, for courts to decide cases without reference to the Constitution. He picked up my prior remark that sooner or later the appointment power would mean that the commerce clause would be interpreted in accordance with “the needs of the nation.”34 But instead of drawing from that the conclusion I had, which is that the Court cannot stand forever against what a strong political movement perceives as the nation’s needs, Specter was prepared to make that a constitutional principle, saying that was “a very broad articulation of what the Supreme Court does, meeting the needs of the nation. That certainly is not concrete and that certainly is not specified in the Constitution.”35 He then somehow got the idea that I had approved of Bolling v. Sharpe and the expansion of the commerce clause by the New Deal Court. I had to explain once more that I accepted the expansion of the commerce clause “because what has happened is irreversible.”36 It did no good, however; he continued to come back to “the needs of the nation” as though that phrase provided some kind of warrant for judges to act without constitutional authority and as though I had accepted the idea.37
I spent almost seven hours all told with Senator Specter, at the hearings and in his offices, discussing constitutional law, all of it at his request. To the end, he could not comprehend what I was saying about the first amendment, the equal protection clause, the need to construe the Constitution in the light of the original understanding, or the dangers of letting judges decide cases with no more authority or guidance than a phrase not in the Constitution, such as “fairness” or “the needs of the nation.” Because I was, out of necessity, patient with him, a lot of people not versed in constitutional law got the impression that this was a serious constitutional discussion.
Nor was there any serious discusson of law with the Democratic senators. Kennedy simply kept insisting that I was against everybody’s rights. He and Metzenbaum tried to establish, but could not, that my discharge of Archibald Cox was illegal.38 They dropped that subject when it became apparent that the work of the Office of the Special Prosecutor had not been hindered in any way and continued as planned after Cox left. It was left to Metzenbaum, however, to make some of the most egregious accusations about my attitudes toward women.39 He insisted that in one of my decisions I had put women employees to the choice of losing their jobs or being sterilized in order to allow the company to achieve a safer workplace.40 The accusation was so outrageously at odds with the facts of record that I could hardly believe it was being made, but Metzenbaum made it over and over again long after it had been conclusively answered. It is answered once more in the next chapter.
And so on it went, through five long days, Democratic senators making accusations over and over again, not deterred in the least by testimony or facts, and Republican senators, with the exception of Specter, bringing out my record as a judge and as Solicitor General to show that the charges were false. Strom Thurmond, Orrin Hatch, Al Simpson, Charles Grassley, and Gordon Humphrey labored at length to expose the misrepresentations, and I remain grateful to each of them. But it became clearer and clearer that the hearings were changing no one’s mind on the committee. The same questions, the same charges were answered and rebutted over and over again. The process resembled more a war of attrition than an exploration of views.
During the hearings, Senator Biden’s presidential aspirations came to a sudden end, probably for all time. The campaign staff of Governor Michael Dukakis gave the press videotapes demonstrating that Biden had plagiarized speeches by other politicians such as Britain’s Neal Kinnock.41 In addition, the press learned that Biden had misrepresented his law school record.42 As the damaging facts began to pile up, Biden at first tried to explain and finally had to hold a press conference at which he withdrew as a candidate for his party’s nomination.43 Shortly after that, during a break in the hearings, Biden came over to my table and said, with every appearance of sympathy, “You know, your situation and mine are a lot alike.” I didn’t think there was any comparison but managed not to tell him so.
At last, on a Saturday, my testimony came to an end. Biden asked me if it had been fair.44 I said it had, meaning that he had let me answer every accusation, but it had not been a “hearing” at all, since nobody heard.
The hearings were undoubtedly harder on my family than on me. I at least had the opportunity to speak in response to what was being said, while they had to sit for hours on end and listen to the calumnies. Every evening, at home, we discussed that day’s developments. My family was a great source of strength during the entire proceeding. After my part was over, Mary Ellen and I were offered the use of a country place in Middleburg, Virginia, by Dr. and Mrs. Walter Abendschein. We went down for two or three days of utter inactivity. The hearings continued with witnesses for and against me, but we were so repelled and wearied by the entire experience that we could not watch even the friendly witnesses on television.
As a matter of fact, a lot of the friendly witnesses were not much on television or reported in the papers either.45 Joe Biden and the Democrats structured the proceedings to keep them off. For example, the opposition had two former Attorneys General of the United States testify against my confirmation. Seven former Attorneys General were to testify in favor of confirmation. The nine were taken early in the morning to the office of the Vice President in the Capitol to await their turn. They were given breakfast there, then lunch, and the day dragged on toward dinner. Biden had the two opposed AG’s testify during the day and kept the seven favorable ones waiting until the deadline for the evening TV news programs and the morning newspapers had passed. One of them, William Saxbe, with whom I had served in the Department of Justice, was a former senator and became so incensed at this treatment that in late afternoon he walked out. Edward H. Levi, William French Smith, William P. Rogers, Herbert Brownell, Griffin B. Bell, and Elliot Richardson testified but were not, of course, seen on the evening news or reported in the next day’s papers. These reported only the two AGs in opposition. Nor did the media go back the next day to report what they had missed. Tactics like this were intended to, and did, give the public a greatly distorted view of the opposition and the support.*
Th
roughout the hearings the negative advertisements kept up, with almost no answering ads. By and large, the major media outlets were very hostile. They did not trouble to analyze the assertions made in the advertisements on television, radio, and in print, though the falsity of the charges could easily be shown. In fact, the steady barrage of lies would have been a major story, but it went largely (on the networks and in the two major East Coast papers, entirely) unreported and unanalyzed. Nor was the major media’s own reporting unbiased.46 Instead, most of the major media institutions simply reported the accusations and made no attempt to report the facts that were misrepresented. There were some exceptions. The Wall Street Journal editorial page answered the smears in detail, though its news pages were unfriendly. The Chicago Tribune and other papers also were fair. So enormous were the negative advertising and the bias in the major media organs that to this day I am astounded that so many Americans saw through them and understood that I was not the ogre painted.
In any event, the nomination began to unravel. Senator after senator announced against me long before the Senate debate was scheduled to begin. A number of them made statements that came right out of the advertising campaign and had nothing to do with either the hearings or my record. Senators said that I favored school prayer (a subject I have never addressed), that I believed individuals had no right of privacy in their own homes (I had testified that the fourth amendment guaranteed that privacy), that I rejected legal rights for noncustodial parents and grandparents to visit their children and grandchildren (a confusion of a case I had decided and Planned Parenthood’s false assertion that I had ruled in Moore v. East Cleveland). Senator Lloyd Bentsen, who was shortly to run for vice president, said he could not vote for a man who believed there was no constitutional right to privacy, especially in the home. He had evidently not read anything I had written or my testimony, where I repeatedly said that the Constitution protected many aspects of privacy of the home. Senator Conrad produced an outrageous parody of the philosophy of original understanding, saying that I would “confine the constitutional search for justice to an 18th century world where women could not vote and slaves were property.”47 He thus purported to believe that I would somehow overrule the thirteenth, fourteenth, fifteenth, and nineteenth amendments to the Constitution. On and on the misrepresentations rolled. The repetition of the ad campaign’s charges as though they represented my views became so ridiculous that even some Democrats who voted against me complained that the Senate process of debate was being subverted and positions taken from thirty-second television spots.