Judge Robert H. Bork, R.I.P.

I was in Los Angles in late October 1987 to give a speech when I stepped into the hotel’s television lobby and saw the special news report. Reagan’s nominee for the Supreme Court, Robert Bork, had been rejected by a jaw-dropping Senate vote of 58 to 42. Even after being viciously treated in his Senate hearings, I naively thought his trashing was mostly posturing for the folks back home (the 1988 election was the following fall.) In retrospect, I now believe the current incivility in our political process can be traced in a straight line from the Bork interrogation.

The smear campaign began only 45 minutes after Reagan’s nomination of Robert Bork was announced. The virtuous Ted Kennedy strode to the Senate floor to deliver an obviously planned speech that curiously aired nationally, a rarity for impromptu senate speeches. Kennedy’s diatribe became known as the “Robert Bork’s America” speech. In part it alleged,

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 could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.

A briefing book on the Bork record had been prepared for Joe Biden, who publicly announced his opposition to the nominee even though he would chair the Senate Judiciary Committee hearings. Judge Bork later wrote that the briefing book "so thoroughly misrepresented [my] plain record that it easily qualifies as world class in the category of scurrility." Biden delayed the committee hearings an unprecedented 76 days so that, as Kennedy later revealed, the anti-Bork media campaign would have time to gain momentum.

Actor Gregory Peck narrated a television spot that labeled Bork an extremist. For only the third time in its seven-decade history the ACLU weighed in to voice its opposition to a Supreme Court nominee. A biased Harris poll was so patently slanted to produce negative results that it unsurprisingly found 57% of Americans opposed the Bork nomination. Predictably the mainstream media joined the tag team match to assassinate the nominee’s character. It was later revealed that Bork’s trash cans were combed looking for evidence of scandal and even his video rentals were investigated hoping he had a penchant for pornography. Instead, investigators and reporters found his penchant was for old Fred Astaire and John Wayne movies. The anti-Bork campaign was such a well-organized blitzkrieg that it paralyzed the Reagan White House, which inexcusably made no response in defense of its nominee for over two and a half months.

It’s hard to believe in today’s political climate that nominations by the President for the Supreme Court were once respectfully conducted. Some hearings lasted only minutes. The presumption of fitness for judicial office and the deference to the President to appoint a person he wanted meant the Senate’s “advise and consent” role was administered with a light touch.

Eight years before the Bork nomination, Biden had hypocritically scolded Republican senators who questioned the fitness of Carter’s nomination of Abner Mikva to an appeals court because of Mikva’s record of judicial activism. Biden argued “I think that the advise and consent responsibility of the Senate does not permit us to deprive the President of the United States from being able to appoint that person or persons who have a particular point of view unless it can be shown that their temperament does not fit the job.” Kennedy the Righteous had taken the Senate floor on that occasion too, but in this instance to defend Mikva’s nomination: “If strong political views were a disqualifying factor from serving on the federal bench, then all of us here today – and every man and women who has ever served in either house of Congress, or held political office – would be disqualified.”  Kennedy had argued a similar defense for Thurgood Marshall’s nomination in 1967 to the Supreme Court. 

Of course, those high-minded arguments became moot upon the nomination of Robert Bork, whose name would become a verb after the trashing it received from Kennedy, Biden, Arlen Specter, and Bob Packwood (who was later forced out of the Senate in a sex scandal.)

There have been 112 justices who served on the Supreme Court since the beginning of the Republic. Judge Bork was only the 12^th to be rejected by the Senate. His America was not the one deceitfully described by Kennedy. Robert Bork’s America was one in which elite judges would not have the power to remake American values. During his hearings he promised to practice apolitical jurisprudence based on what the Constitution explicitly said, not what it meant to an evolving modern mind.

When he was still in academia, Bork had the audacity to challenge the judicial activism of the Warren and Burger Courts. His writings argued, for example, that the Constitution articulates no general right to privacy – the foundation of the Roe v. Wade decision. He published the intellectual framework for originalism which influenced the judicial philosophy of Justices Antonin Scalia and Clarence Thomas. Originalism meant justices were obliged to interpret the Constitution in terms of what it meant at the time of its adoption and avoid willful discoveries and interpretations that are not expressly contained in its wording. His foes knew that putting an originalist like Bork on the Supreme Court would enable him to influence the jurisprudence of eight other justices and they were determined to prevent that. In a sense, Robert Bork was rejected because he took the law too seriously.

Bork’s judicial integrity showed through when responding to Senator Dennis DeConcini’s gotcha’ questions in the hearings. When DeConcini asked Judge Bork for his understanding of the Ninth Amendment, which says,

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Bork said he didn’t know what the Amendment was saying. He could only guess at its meaning and therefore would never rely on it to make a decision. DeConcini pressed harder probably believing that doing so would not turn out well for Judge Bork. Instead he responded brilliantly;

I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says “Congress shall make no” and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.

Most lawmakers in the House and Senate are constitutional illiterates. Certainly none then or now had an intellect that matched Robert Bork. His responses to their questions were forthright, not the timid, safe, non-committal responses nominees give today. No doubt he realized the risk he was taking by instructing his interrogators on the fine points of his constitutional interpretation. But in doing so, he ran intellectual rings around them.

In a book he published years later, he elaborated the answer he’d given DeConcini:

The judge who cannot make out the meaning of a provision is in exactly the same circumstance as a judge who has no Constitution to work with. There being nothing to work with, the judge should refrain from working. A provision whose meaning cannot be ascertained is precisely like a provision that is written in Sanskrit or is obliterated past deciphering by an ink blot. No judge is entitled to interpret an ink blot on the ground that there must be something under it.

Bork was a Phi Beta Kappa at the University of Chicago law school, he had been a Marine, a member of a prominent Chicago law firm, and a longtime professor of law at Yale Law School. His students had included Bill Clinton, Hillary Rodham, Jerry Brown, Gary Hart, and Anita Hill, among others, although he said of these, “They weren’t my students. They were in the room. But they weren’t my students.”

Professor Bork was given a leave of absence from Yale to serve as President Nixon’s Solicitor General of the United States. When the Watergate scandal erupted and Special Prosecutor Archibald Cox asked Nixon for his Oval Office tapes, Nixon ordered Attorney General Elliot Richardson to fire him. Richardson refused and resigned. Deputy AG William Ruckelshaus was ordered to do the deed and he refused and resigned. This made Bork Acting Attorney General in Nixon’s infamous Saturday Night Massacre. When Bork contemplated resigning Richardson and Ruckelshaus talked him out of it, fearful that the entire leadership structure of the Justice Department would collapse. They advised Bork to fire Cox and hire another Special Prosecutor. Bork hired Leon Jaworski who completed the investigation with integrity, forcing Nixon from office. Despite this outcome, Bork had sown the wind by firing Cox and would reap the whirlwind, when his enemies vilified him for being Nixon’s hatchet man.

Acting Attorney General Bork, in the meantime, negotiated a plea agreement by which then Vice President Spiro Agnew would plead nolo contendere to criminal wrongdoing and resign, bringing Gerald Ford to the vice-presidency. With Nixon’s resignation, Ford became President. Thus Bork resolved a complicated mess – avoiding a constitutional crisis along the way – which put Ford in the White House. Ford showed his gratitude by skipping over Bork when a Supreme Court opening occurred, nominating instead John Paul Stevens, a “safe” candidate.

With the election of Jimmy Carter, Bork returned to Yale and teaching until Reagan was elected and tapped him for the US Court of Appeals for the District of Columbia. His judicial brilliance on that court attracted Reagan to nominate him to replace retiring Supreme Court Justice Lewis Powell.

After the toxic Senate hearings lesser men might have withdrawn in bitterness and left public life behind. Not Judge Bork. He resigned from the Court of Appeals to devote himself to a career of writing and intellectual development. Rather than exiling him to ignominy, his conduct during the Senate witch hunt caused him to become more admired, if not famous. He produced The Tempting of America: The Political Seduction of the Law, a best seller that confronted his rejection by the Senate head-on and warned against the erosion by politics in constitutional interpretations. The remedy for resisting this temptation, he wrote, is an unyielding commitment to the theory of original understanding, leaving the elective legislative processes to resolve matters on which the Constitution or its framers are silent or ambiguous.

Two books later, he had expanded his commentary to the cultural malaise in American society with the publication of Slouching Towards Gomorrah: Modern Liberalism and American Decline. The title is descriptive of its thesis – that liberalism and the rise of The Left had introduced the corrosive tolerance of abortion, media violence, sexualization, assisted suicide, affirmative action, and a decline in religious discipline into society.

In one of his last books, A Time to Speak: Selected Writings and Arguments, Judge Bork included an essay entitled “Thomas More for Our Season.” It drew parallels between now and then – then being the time Thomas More lived, 1478-1535 – to illustrate what happens when law becomes politicized. Thomas More was a deeply religious man. He was also a lawyer.

Robert Bolt’s play, A Man for All Seasons, created a dialog between More and his future son-in-law, William Roper which Bork used to demonstrate his own understanding of the law.

Roper urges More, who is the Lord High Chancellor, to arrest Richard Rich, whose perjury will eventually lead to More's execution. More answers that Rich has broken no law, "And go he should, if he were the Devil himself, until he broke the law!"

Roper protests that Rich is a bad man. Being a bad man is not against the law, More retorted. “But there is God’s law,” Roper appeals.

More: Then God can arrest him…. The law, Roper, the law. I know what’s legal not what’s right. And I’ll stick to what’s legal… I’m not God. The currents and eddies of right and wrong, which you find such plain sailing, I can’t navigate. I’m no voyager. But in the thickets of the law, oh, there I’m a forester.

Roper: So, now you give the Devil the benefit of law!  

More: Yes. What would you do? Cut a great road through the law to get after the Devil?

Roper: I’d cut down every law in England to do that!

More: Oh? And when the last law was down, and the Devil turned round on you – where would you hide, Roper, the laws all being flat? …This country’s planted thick with laws from coast to coast – man’s laws, not God’s – and if you cut them down… d’you really think you could stand upright in the winds that would blow then?… Yes, I’d give the Devil benefit of the law for my own safety’s sake.

Given his gloomy outlook for the future of constitutional law and American society, Judge Bork was once asked if there was any aspect of our culture for which he was hopeful. “Absolutely,” he replied without hesitation …”the martini.”  Robert Bork knew a lot about martinis, their history, their appeal, and the proper way to make one.  A Judge Bork martini was very dry – vermouth and ice were first shaken together before pouring out the vermouth – and Bombay Sapphire gin was added to the vermouth-coated ice and shaken until chilled.

The final product was served straight up with a twist of lemon peel – not with a “barbaric” olive – and certainly never served “on the rocks.” Bork recalled a dinner guest ordering a martini “on the rocks” and thinking, “Oh the horror, the horror!” Insofar as “on the rocks” inferred a state of bankruptcy, it was a perfect description for good gin being diluted by the minute from melting ice.

The final essay in his book, A Time to Speak, is entitled “Martini’s Founding Fathers: Original Intent Debatable.” This tongue-in-cheek masterpiece, published initially in the Wall Street Journal 18 years after running the Senate gauntlet, shows the good humor Bork still retained as he applied his originalist legal philosophy to critique an article written by Eric Felten about dry martinis. It’s a not-so-subtle lampoon aimed at advocates of an elastic interpretation of the Constitution.

What counts in mixology is the “original understanding” of the martini’s essence by those who first consumed it. The essence remains unaltered but allows proportions to evolve as circumstances change. Mr. Felton’s “near-perfect martini” is the same in principle as the “original-understanding martini” and therefore its legitimate descendant. Such latter-day travesties as the chocolate martini and raspberry martini, on the other hand, are the work of activist bartenders.

Mr. Felton lapses into heresy only once. He prefers the olive to the lemon peel because the former is a “snack.” Dropping a snack into a classic drink is like garnishing filet mignon with ketchup. The correct response when offered an olive is, “When I want a salad, I’ll ask for it.”

Notwithstanding the historic rejection of his fitness to serve on the highest court of the land, Judge Bork had the last laugh.  Kennedy, his principal tormentor, went to his grave a morbidly obese alcoholic; a pathetic laughing stock whose outbreaks of sanctimony on the Senate floor could never wash away his sins at Chappaquiddick. Bork, in contrast, went from one intellectual triumph to another, leaving behind a written intellectual legacy that will be read for generations.

Robert Bork died on December 19 in his 85^th year from heart disease and complications of COPD.