A majority of senators announced that they would vote against me before the debate even began. This can only have reflected the heavy political pressure they were under from the activist groups and from constituencies that had been misled as to my views. Otherwise, even if a senator were determined to vote against confirmation, it would have been politically wiser to appear to listen and deliberate. But the left wanted its victory nailed down immediately, and it became politically expedient to announce against at once. Senator Exon, who voted against me, said “The rush to judgment day accelerated as pressures and demands from special interest groups mounted to record proportions.”48
The crucial bloc were the Southern Democrats. Kennedy’s strategy of arousing blacks with lies about my positions had put these senators in an awkward position. Southern Democrats do not win elections without an almost unanimous black vote in their favor. Southern blacks had been told that I wanted to “reopen the wounds” of the civil rights struggles. That falsehood also worried Southern whites as well, since nobody in his right mind would want to refight those issues. The columnists Evans and Novak reported that both Dennis DeConcini of Arizona and John Shelby of Alabama had left Washington in August expecting to vote for confirmation. “[DeConcini] returned a different man, as was shown in hostile questioning of Bork. The explanation is massive pressure against Bork by … [l]abor, feminists and particularly blacks.”49
The Southern senators held a caucus and decided to vote against me as a bloc. Senator J. Bennett Johnston was apparently the main figure in this decision. According to the Washington Post, Johnston said to Shelby:
This nomination is going to go down because people like you are going to vote against it. You’re going to vote against it because you’re not going to turn your back on 91 percent of black voters in Alabama who got you here.50
The same story stated that many Southern senators cited Johnston as important to their final decision to oppose the nomination. Kennedy’s racial politics had succeeded.
From the day I was nominated, the press had set up a watch at our home in Washington, print reporters and television crews camping in the street from very early in the morning until I returned home at night. Now that defeat was assured they set up a “death watch,” apparently convinced that I would announce my withdrawal. They shouted questions at me whenever I appeared. Two motorcyclists and a man in an automobile were stationed on the street and followed our car wherever we went, from home to the office and back. They worked for the three networks. My son Robert usually drove us in the family car. The route between office and home runs behind the White House and past the gate that most people use. Toward the end, we drove that way with the whole family in the car, the motorcyclists and the car driver right behind us. They must have radioed ahead that we were headed for the White House, and as we got there a great rush of reporters and cameramen sprinted toward the gate, but we drove on past and Robert signaled happily to the followers that they had been fooled.
The question of withdrawing now became a very real one. Defeat was certain. We received advice from a great many people, and almost all of it was to withdraw rather than take a bad Senate vote. President Reagan said he would prefer that I stay in but clearly left the decision up to me. Vice President Bush issued a statement expressing the hope that I would stay, and the Republicans in the Senate urged the same course. At one point, Mary Ellen and I attended a meeting with Republican senators in the offices of the Minority Leader, Robert Dole. The senators were enthusiastic about fighting it out. Only Allan Simpson said that he was not sure I should stay in because I would have to live with a fairly decisive defeat. One of the other senators said that if they had known Simpson was going to talk that way, they wouldn’t have invited him to the meeting. At the conclusion, someone said, “Let’s all accompany Judge Bork to his car.” They formed a group around us and we went together out to the front of the Senate, where a great many reporters and people were waiting. The senators applauded as we got in the car and were driven away. Later they sent me a pair of signed photographs of the occasion.
It was fairly clear that most of the White House staff wanted me to pull out and end the episode so they could get on to a new nominee. But the people I listened to most were personal friends who obviously had no political calculations in mind but were concerned only for my well-being. They were virtually unanimous in urging withdrawal before the vote. One couple of whom we are especially fond cited Theodore Sorenson’s withdrawal of his nomination to head the CIA under President Carter. Largely because of the advice of personal friends, Mary Ellen and I were leaning toward withdrawal. We were both very weary from more than three months of struggle and unremitting attack. It is hard to think clearly under such conditions, but we carefully weighed the pros and cons. Finally, getting out seemed probably the best course.
On Thursday, October 8, I sat at my desk in my chambers and began tentatively preparing a withdrawal statement. Mary Ellen and my sons, Robert and Charles, were having coffee in a room across the hall. I had trouble composing the statement. It did not feel right. At that moment Al Simpson called from his hotel room in Denver. Simpson said he had been rethinking his suggestion that it might be better to withdraw. If I did, the matter would be closed, but if I stayed in, he and the other Republicans could make a permanent record in the debates that would tell the facts for history. Shortly before Simpson hung up, Mary Ellen, Robert, and Charles walked into my chambers, looking like a delegation come to make a statement. When I had hung up, and before I could tell them what Al Simpson had said, Mary Ellen said, “We got to talking and we barged in to tell you what we think.” She gestured toward Charles, who said he had always been against withdrawing. Robert then said he thought I should not quit. Mary Ellen then said, “I don’t think you should withdraw. Why should you?” I told them what Simpson had said, which seemed to me to make a good deal of sense. But what made the difference, I think, was a simple emotional reaction that we shared, that it was better to fight than to run, even though defeat was certain. I had been subjected to unbelievable amounts of abuse and lies, and I was not going to reward the people who had done it. As soon as the decision was made, we all felt much better and more cheerful.
I telephoned Ray Randolph, told him the decision, and asked him to stop by my house on his way home. At the house we worked on a statement to be made the next day since a public decision could be postponed no longer. The next morning we met again in my chambers, and as we bent over the draft, Ray lifted his head and asked, “Do you have any doubts about this?” I said, “No.” Ray said, “Neither do I,” and we bent over the draft again. Robert and Charles came in and began working with us. Both of them made good suggestions. Later my daughter, Ellen, came in. She agreed but had not wanted to say anything while we were in the process of deciding. We had notified the White House that we were coming over, though they did not know what I had decided. We finished the draft just as the cars arrived, and the family plus Ray Randolph got into the cars and went.
The press, of course, saw us arrive and immediately assumed that I had come to announce my withdrawal. That impression was supported by the fact that my family was with me. It is common, I am told, for a nominee to have his family with him when he surrenders. I wanted mine with me because we—I do not say I but we—were not going to surrender. By this time the whole business had become very much a family enterprise. The President was upstairs at a farewell luncheon for a cabinet member, so we were put in the downstairs Map Room, just inside the back door. Soon George Bush joined us, as did Edwin Meese, the Attorney General. Conversation was rather desultory, we drank coffee, and I did a moderate amount of pacing about the room. Finally, word came that I was to join the President and staff members upstairs in the family quarters. The Vice President and the Attorney General, of course, also came. Mary Ellen, Robert, Charles, Ellen, and Ray remained in the Map Room.
The President sat in an armchair and I on a sofa perpendicular to his chair. Bush and Meese knew my
decision, but the others did not. I said that we had considered the matter very carefully and had decided that I should not withdraw. Reagan said that was the way he wanted it, but I thought some of the staff looked unhappy. In any event, I said I had a statement I wanted to make in the White House press room. One of the staff took it and went off to have copies made for distribution to the press. Soon my family was brought up to meet Reagan, and he chatted pleasantly with them until the copies were ready. Then we went down and I walked alone into a packed press room. Once more still cameras were flashing and television cameras rolling. The reporters were leaning forward; they thought it was the end. I then read the following statement:
More than three months ago, I was deeply honored to be nominated by the President for the position of Associate Justice of the Supreme Court of the United States.
In the 100 days since then, the country has witnessed an unprecedented event. The process of confirming Justices for our nation’s highest Court has been transformed in a way that should not, indeed must not, be permitted to occur ever again.
The tactics and techniques of national political campaigns have been unleashed on the process of confirming judges. That is not simply disturbing. It is dangerous.
Federal judges are not appointed to decide cases according to the latest opinion polls. They are appointed to decide cases impartially according to law. But when judicial nominees are assessed and treated like political candidates the effect will beto chill the climate in which judicial deliberations take place, to erode public confidence in the impartiality of our judges, and to endanger the independence of the judiciary.
In politics the opposing candidates exchange contentions in their efforts to sway the voters. In the give and take of political debate, the choice will, in the end, become clear. A judge, however, cannot engage. Political campaigning and the judge’s function are flatly incompatible. In two hundred years, no nominee for Justice has ever campaigned for that high office. None ever should. And I will not.
This is not to say that my public life—the decisions I have rendered, the articles I have written—should be immune from consideration. They should not. Honorable persons can disagree about these matters. But the manner in which the debate is conducted makes all the difference. Far too often the ethics that should prevail have been violated and the facts of my professional life have been misrepresented.
It is, to say no more, unsatisfying to be the target of a campaign that by necessity must be one-sided, a campaign in which the “candidate,” a sitting federal judge, is prevented by plain standards of his profession, from becoming an energetic participant. Were the fate of Robert Bork the only matter at stake, I would ask the President to withdraw my nomination.
The most serious and lasting injury in all of this, however, is not to me. Nor is it to all of those who have steadfastly supported my nomination and to whom I am deeply grateful. Rather, it is to the dignity and integrity of law and of public service in this country.
I therefore wish to end the speculation. There should be a full debate and final Senate decision. In deciding on this course, I harbor no illusions. But a crucial principle is at stake. That principle is the way in which we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion. If I withdraw now, that campaign would be seen as a success and it would be mounted against future nominees.
For the sake of the federal judiciary and the American people that must not happen. The deliberative process must be restored. In the days remaining I ask only that voices be lowered, the facts respected, and the deliberations conducted in a manner that will be fair to me and to the infinitely larger and more important cause of justice in America.51
I walked out without taking questions. Afterward a White House car took us back to the courthouse, still followed by the press automobile and the two motorcyclists. In a moment, I was handed the car telephone. It was Senator Dole and two other Republican senators calling to congratulate me on the decision to stay in the fight. Still later, the car took us home, and now an oddly cheering minor event occurred. The people following us, particularly the goggled motorcyclists, had always seemed ominous and hostile, but, as I looked back, one of the press motorcycle riders lifted his gloved right hand and gave me a thumbs-up salute.
Not long afterward, the President made two speeches on the subject. In one he quoted the columnist David Broder: “To subject judges and judicial appointees to propaganda torture tests does terrible damage to the underlying values of this democracy and the safeguards of our freedoms.”52 In the other, he said, “The principal errors in recent years have nothing to do with the intent of the framers who finished their work 200 years ago last month. They’ve had to do with those who have looked upon the courts as their own special province to impose by judicial fiat what they could not accomplish at the polls.”53
Within a few days the Senate began its non-debate. There was hardly a vote on either side that had not already been announced, and once senators announce, they do not change. That was why the activist groups applied so much pressure to get announcements of opposition before the debate began.
A number of senators made strong speeches on my behalf. All of them cannot be mentioned but Jack Danforth of Missouri obtained a full hour and made a magnificent speech, expressing, among other things, his anger at the travesty of a process the Senate had produced.54 Mary Ellen and my sons sat in the gallery to watch the debate. Mary Ellen was so moved by Danforth’s speech that she could watch no more. A great many senators on both sides spoke, and the question arose when to cut off the debate. Al Simpson telephoned at night to say that there were more Republicans who would speak but he thought the points had all been made and there was danger of having the whole thing sag into anticlimax. There was also the possibility that Senator Byrd would postpone the remaining speeches for a week or two to take up other matters. He asked what I wanted them to do. The prospect of leaving the Court without a new nominee was worrisome. The Court can get along with eight members for a time by scheduling argument only in cases that promise not to divide the Justices evenly, but that tactic can be used only so long. I told Simpson that I had no objection to closing down the debate and would accept his and the others’ judgment about the best time to do that.
October 23 was chosen as the day for the vote, very nearly four months after the nomination. Mary Ellen and I had no desire to watch. We invited Walter Berns, a friend and prominent political scientist, to have lunch with us at the Madison Hotel. We knew the vote was over when a reporter from the Washington Post interrupted our lunch by standing at the table and asking how I felt about being rejected. I told her I would like to have lunch in peace.
We did not actually have any particular reaction to the Senate vote, because we had known the certain outcome for quite some time. Later, when I had time to reflect, I felt regret that I was now effectively barred from public life, a life which I enjoy and for which, I confess, I feel suited. But there was no sadness at not being on the Supreme Court. There is the opportunity now to study and to write and to speak. When Alex Bickel was in the last stages of his illness he told me that on a house visit his doctor had expressed some sharp opinions about the slowness of the procedures by which Richard Nixon was being impeached but that he had persuaded the doctor to think otherwise, to recognize the immense importance of process. I expressed surprise that Alex, who was then half-blind and paralyzed on his right side, should have made such an effort. He drew himself up as well as he could in the chair he now never left and said, “I’m a teacher.” The happiness and pride with which he said it were both entirely justified. It is a great calling to be a teacher—of true things.
Only once since the day of the vote did I feel a pang of sadness. Mary Ellen and I were getting ready to go out for the evening and she came to show me a new dress. I liked it very much and told her so. She said, “This is the dress I bought for your swearing in. I hadn’t the slight
est doubt it would happen.” The poignancy of that moment had nothing to do with my career but with her, and since I could not explain it, I said nothing and the moment passed.
In the months that followed the vote I resumed sitting as a court of appeals judge and discussed with my family the course we should take in the future. It seemed clearer now than ever that I should leave the court for reasons that I expressed in my January letter of resignation to President Reagan.
January 7, 1988
Dear Mr. President:
Six years ago you appointed me to the United States Court of Appeals for the District of Columbia Circuit. That was a great honor and I continue to be grateful to you for it. The task of serving the law and the ends of justice has made the last six years absorbing and fulfilling.
It is, therefore, with great reluctance, and only after much thought and discussion with my family, that I have now decided to step down from the bench. This decision is the more difficult because of what I owe to you, to the many Americans who have written to me in the last six months to express their support, and, indeed, to all Americans our system of justice serves. Because I recognize these debts and obligations, I want to explain the course I have chosen.
The Tempting of America Page 40