"Battle for Justice: How the Bork Nomination Shook America", by Ethan Bronner

With the confirmation battles for the Trump Cabinet nominations looming on the horizon, this seemed a good time to reread this book. The book is an incredibly detailed, nearly day-by-day account of the great battle over Reagan's 1987 nomination of Robert Bork to replace retiring Associate Justice Lewis Powell on the Supreme Court.

When President Reagan announced the nomination of Bork on July 1, 1987, liberal groups around the country were ready, knowing that Bork had been Reagan's second choice the year before when Antonin Scalia was nominated instead. Within 45 minutes of the announcement, Senator Ted Kennedy took to the Senate floor and delivered a hard-hitting speech, saying:

"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, school children could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is--and is often the only--protector of the individual rights that are the heart of our democracy.

"America is a better and freer nation than Robert Bork thinks. Yet in the current delicate balance of the Supreme Court, his rigid ideology will tilt the scales of justice against the kind of country America is and ought to be.

"The damage that President Reagan will do through this nomination if it is not rejected by the Senate could live on far beyond the end of his presidential term....he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme court and the next generation of Americans."

But Kennedy did far more than just give a speech. He worked night and day for the two and a half months from the nomination to the start of the Senate hearings to whip up a groundswell of grass-roots opposition to the Bork nomination. Kennedy masterfully coordinated the efforts of the hundreds of groups around the country who were opposed--women's groups, civil rights groups, labor groups, et al. There were strict guidelines to be followed, like do not talk about abortion or affirmative action; rather, focus instead on how Bork's opposition to any right of privacy puts him "out of the mainstream" of judicial thought.

This was the first Supreme Court nomination fight in which ideology played the major role. And there was a good reason for this. Conservative groups had made it clear that they were out to gain control of the federal judiciary. Bruce Fein, a Justice Dept. attorney in charge of screening nominees, said, in 1985, that "It became evident after the first term that there was no way to make legislative gains in many areas of social and civil rights. The president has to do it by changing the jurisprudence." Part of this strategy involved appointing young judges who would be around for a long time, given the life tenure of federal judges. Thus, 11.4% of Reagan's first term appointees were under 40, a record for modern presidents.

Facing this concerted Republican effort to politicize the judiciary, it was quite natural for the Democrats to push back against it. So, instead of focusing on personal integrity and legal ability, as was customary in the past, and which Bork had high marks on, political ideology now took center stage. Added to the need for this was the fact that Bork would replace the justice, Lewis Powell, who had represented the swing vote during his time on the Court. So, were Bork to be confirmed, the conservatives would be in charge.

Bronner says that ultimately "some three hundred organizations" joined the anti-Bork movement, all adhering to the message that Bork was "out of the mainstream". By contrast, the White House efforts in support of Bork were haphazard and disjointed. The use of "murder boards", where the nominee was subjected to hostile questioning as practice for the actual hearings, was proposed but rejected by Bork. The suggestion that he shave off his beard was also rejected. It was urged that he and his wife be interviewed by Barbara Walters in an attempt to humanize him, but Bork also vetoed this suggestion.

A White House briefing book on Bork tried hard to refute the idea that Bork was out of the mainstream, and would therefore tip the balance of the court to the right. To that the Justice Dept. lawyer, John Bolton, in charge of relations with Congress, threw up his hands in disgust and said, "If he wouldn't change the balance of the Court, then why the hell are we nominating him?" The White House was unable to enlist the cooperation of the strongest conservative lobbying group, the National Rifle Association, due to the NRA's concern over what it saw as Bork's restrictive view of the Fourth Amendment.

Finally, on September 15th, the hearings began, which Bronner doesn't get to until page 208 of his 352-page book. Polls at the time showed the nation evenly divided on Bork's confirmation, so the hearings were vitally important.

The hearings got off to a rocky start for the White House when the first witness, Gerald Ford, gave a statement in support of Bork and was then unexpectedly asked by Senator DeConcini whether he had read any of Bork's opinions or law review articles. A flustered Ford had to admit that he had not. Bronner states that "Ford hadn't the slightest idea about Bork's record. He was there as a showpiece..."

Next came a record five days of testimonay by the nominee himself. Bork came across as overly aloof and professorial, avoiding clear and direct answers to many questions. He gave undecided Senators no reason at all to support him.

Senator Kennedy absolutely destroyed Bork's credibility with his skillful questioning on various constitutional issues. For example, Kennedy asked Bork whether his view would lead him to uphold a statute requirng mandatory abortion. Bork could not give an intelligent answer; Bronmnmer states that "His only argument regarding compulsory abortion was that no state would pass such a law, and if it did, the state would not enforce it. To suggest otherwise, he said, was to exhibit little faith in the people." This exchange illustrates well the fundamental constitutional issue being confonted. The conservatives thought legislative majorities should decide matters, while liberals had a concern for the rights of individuals. The Bork supporters had no concern for the minorities who can, and often do, have their rights infringed upon by legislative majorities.

The White House efforts to rehabilitate Bork failed miserably. OPne GOP Sentaor after another would lob up softball questions to Bork giving him a chance to explain his views, and Bork would consistently fail to take the bait. (This is quite similar to efforts during the recent presidential campaign when FOX commentators would lob softball questons to Trump, and Trump would fail to rise to the challenge. For example, Sean Hannity asked, "You wouldn't operate as a dictator as president, would you?", and Trump responded "Only on day one." Or, Trump was asked, "You didn't intentionally take classified documenets to Mar-a-Lago, did you?", and Trump's response was "I have every right to do that.") Bork would be asked simple questions about basic Bill of Rights provisions, and his answers would be "I'm not an expert on criminal law", or I've never given that much thought".

The Iran-Contra heaarings had taken place in the same hearing room only two months eariler. Oliver North had given a spectacular performance, in which he came acorss as an earnesdt and loyal pastriot, while the Seantors questioning him came across as dul and plodding. The Democratic Senators in the Bork hearing were detemriend to reverse these roles, and they were successful. The Senators came across as eloquent and well-informed in their questions and statements, while Bork came across as dull and plodding, and evasive. My memory of him is that after being asked a question, he would grimace, look up at the ceiling, and then offer a non-answer about how he had no opinion or hadn't reflected enough on the issue. Often he would disavow his prior views and claim that his views had changed, which only disappointed his supporters and showed that he was trying to demonstrate a "confirmation conversion", which called into question the validity and sincerity of his beliefs.

The committee consisted of eight Democrats and six Republicans, the Democrats having gained Senate control in the 1986 election. The one undecided GOP Senator was Pennsylvania's Arlen Spector, and Bork spent seven hours being questioned by Specter, both in the hearing room and in private. In the end, Specter voted against Bork, making the Judiciary Committee vote 9-5 against Bork. At this point it was obvious that his nomination was doomed, and it was expected that he would withdraw rather than facing a vote of the full Senate. At the last minute he chose to go forward, supported by his wife and kids, and the Senate vote went 58-42 against him.

After the vote Bork resigned his post as a Court of Appeals justice, and decided to devote himself to lecturing and writing. He wrote a book "The Tempting of America", which I read after finishing the Bronner book.

In his book Bork rejects all criticisms of him as lies. To Kennedy's initial speech opposing his nomination, Bork says, "not one line of that tirade was true." To an ad from the People for the American Way which criticized Bork's writings on the poll tax, equal accomodations for blacks, and the principle of one man-one vote, Bork says "None of these charges was true". To an AFL-CIO press release stating that "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", Bork says "My public record demonstrates that there was not a word of truth in this litany". He says that a document known as the Biden Report "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility."

My question to Mr. Bork would be this: If the allegations against you are so clearly and provably false, as you claim, then why weren't you able to convince undecided Senators of this? Are you so lacking in the kind of persuasive skills which good lawyers have that you couldn't articulate your views adequately?

Bork's unwillingness to say that a law mandating abortion would be unconstitutional illustrates his problem. He wants in every instance to defer to legislative majorities. To say that no legislature would ever enact such a law is no answer at all. Legislatures run roughshod over the rights of minorities all the time. Just consider the current problem of gerrymandering. What is gerrymandering but an attempt by a majority to dilute the votes of a minority group? Take Wisconsin; in 2022 Wisconisn voters elected Democrats in the three statewide races--governor, attorney general, and secretary of state. And yet, because of Republican gerrymandering of legislative istricts, Republicans gained majorites of 64-35 in the state Assembly, and 21-11 in the state Senate.

Bork seeks to interpret constitutional provisions strictly, as a judge would interpret a statute. but constitutional provisons are different from statutes. The Constitution contains general provisions, more of an outline compared to the the specific requirements typical of a state statute. The details of constitutional provisions are left to be filled in by the courts, a task which Bork is unwilling to undertake. Our Founders took great care to craft a system which protects minorities against the tyranny of the majority. It is the Supreme Court's job to provide this protection, and Bork would deny the Court this role.

The Neely Subway Chokehold Case

Daniel Penny has been found not guilty by a jury in the New York subway case. Neely was causing a disturbance in the subway, terrifying people in his car. Penny, a Marine veteran, used a chokehold procedure he had learned in his military training to subdue the guy. When the guy died, Penny was charegd with manslaughter. The jury did a conscientious job, asking for clarification from the judge on the meanings of reasonable person, recklessness, and negligence.

The case is reminiscent of the famous 1984 case of Bernhard Goetz, who shot four thugs who were trying to rob him in the subway. Goetz was found not guilty of all charges but a minor gun possession charge. Just as I applauded that verdict, so I applaud the Penny verdict. We are constantly exhorted to get off the sidelines and get involved. We are told, "If you see something, say something". We are told, "The only thing necessary for evil to triumph is that good people do nothing". Then Monday morning quarterbcks get involved after-the-fact and criticize those who choose to get involved.

The Killing of Brian Thompson

Brian Thompson, a health insurance company CEO, was shot in the back and killed the other day in New York. Since then there has been a huge response from people who have been denied coverage by his company. While my personal moral sensibilities don't allow me to rejoice in the cold-blooded murder of another human being, I can certainly sympathize with the sentiments of those who are celebrating his demise. The idea that someone can make himself a multi-millionaire by denying help to needy people is abhorrent.

We know that the lack of health insurance is responsible for 45,000 deaths a year, but we don't know how many deaths are caused by health insurance companies denying coverage. I have seen a figure of 68.000 a year, but I cannot verify this figure, though it sounds plausible.

It seems insurance companies are more and more in the habit of denying claims. In the health insurance field, Thompson's company, UnitedHealthcare, leads with a 32% rate of denying claims. The next highest company, Medica, comes in at 27%. I know a guy who says that every time his family has a medical bill, he has to fight with his insurance company to get it paid.

The inefficiencies of the private insurance system are well-known and well documented. If Thompson's death serves as the catalyst for the development of a more humane health care system in this country, then his death will not have been in vain. The unfortunate reality is that it usually takes some sort of tragedy for meaningful change to occur in the U.S.

Michael Smerconilsh, in his daily poll today, asked the question this way: "Will the tasteless reaction of some to the murder of Brian Thompson nevertheless lead to positive change in the health insurance industry?" I thought the answer would come back a clear "yes". The fact that it was a "no" by a huge majority of 78%-22% demonstrates the pessimism that Americans feel about any improvements occurring in our broken health care system.

The Mask of Dimitrios, (Dir: Jean Negulesco, 1944)

It seems there is no end to the entertaining film noirs from the 1940s. This one is the fifth movie, out of nine total, featuring Peter Lorre and Sydney Greenstreet, a wonderful collaboration which began with "The Maltese Falcon" in 1941.

Lorre plays a mystery writer who learns of the death of an enigmatic career criminal named Dimitrios, whose body was found in Istanbul washed up on the shore of the Bosphorus Strait. The writer becomes intrigued with the story of the dead man, and he undertakes a quest to unravel the story of the life of Dimitrios. His efforts take him to other European cities, including Athens, Sofia, Geneva, Belgrade and Paris. Along the way he runs into the Greenstreet character, and the last part of the movie is mostly about the two of them.

The use of flashbacks in this film is quite effective. Along the way we meet many compelling characters. This is good, old-fashioned storytelling, a movie well worth your time.

"Jefferson's Vendetta: The Pursuit of Aaron Burr and the Judiciary", by Joseph Wheelan

This book tells the story of Thomas Jefferson's relentless (and ultimately futile) pursuit of treason charges against his former Vice-President, Aaron Burr. And it is indeed a fascinating story.

After losing the 1796 presidential electoral vote to John Adams 71-68, with Adams winning the northern states and Jefferson winning the southern states, Jefferson recognized that the key to victory over Adams in 1800 would be to win the swing state of New York. This he accomplished brilliantly by choosing Aaron Burr as his running mate, Burr being the most influential New York politician. With Burr delivering all 12 of NY's electoral votes, Jefferson prevailed 73-65.

But this set up an electoral college tie between Jefferson and Burr, since the Constitution at that time provided tht electors vote for two candidates, without distinguishing between president and vice-president. This threw the election into the House, with each state casting one vote. The Federalists voted for Burr, feeling that he was less of a rabid anti-Federalist compared to Jefferson. After 35 rounds of balloting over five days, the vote remained unchanged: eight states for Jefferson, six for Burr, and two deadlocked. Burr steadfastly refused to bargain for votes, while Jefferson gave the following assurances, according to Wheelan: "To maintain the federal financial system, to preserve the Navy, and not to conduct a wholesale housecleaning of Federalist appointees, other than Cabinet members". After receiving these assurances, a number of Federalist Congressmen abstained, resuting in a vote of ten states for Jefferson, four for Burr, and two deadlocked. Wheelan is quite clear that he believes that Burr handled this whole mess with more integrity than did Jefferson.

Jefferson did not trust Burr with any significant duties during his first term. Burr presided over the Senate with a high degree of professionalism, making procedural improvements which survive to this day.

Near the end of his VP term Burr was tasked with presiding over the impeachment trial of Supreme Court Justice Samuel Chase, a significant proceeding which remains to this day the only impeachment of a Supreme Court justice. Chase was impeached for actions undertaken while serving as a trial judge in lower cuircuit courts. After a year-long inquiry, eight Articles of Impeachment were voted out by the House on December 4, 1804. The political nature of this impeachment is obvious from the voting; all 33 of the Federalist House members voted against impeachment on every article, while the votes against impeachment by the 85 anti-Federalists (or Democratic-Republicans, as they were now called) ranged from only one to a high of thirteen.

The trial took place in the Senate in early 1805, expertly and even-handedly presided over by VP Burr. The Democratic-Republicans in the Senate outnumbered the Federalists 25-9. so the former could lose two votes and still reach the required 2/3 needed for conviction. However, at least six Democratic-Republicans voted with all of the Federalists for acquittal, and Chase was acquitted on all eight counts.

It is impossible to overstate the importance of the Chase acquittal. This case esablished the principle that a successful impeachment must involve serious wrongdoing, and not just mere political differences of opinion. Also, the case went a long way, in conjunction with the 1803 Marbury v. Madison opinion, to establish the independence of the federal judiciary.

This impeachment principle was applied in the 1868 impeachment of Andrew Johnson, which also involved mere political differences. As in the Chase case, the Johnson case involved a Congress heaviy controlled by the impeaching party. With ten southern states still not represented, The Republicans had a lopsided 45-9 majority in the Senate, meaning that the Republicans could tolerate nine defections and still achieve the 36 votes needed for conviction. Leading up to the final vote, nine Republicans were known to be opposed to conviction, leading to Kansas Senator Edmund Ross tipping the scales to acquittal with a last-minute decision to acquit. This courageous decision was one of the "Profiles in Courage" which John F. Kennedy wrote about in his Pulitzer Prize-winning book in the 1950s. The title of the Ross chapter was "I looked down into my open grave", which was how Ross described his decision to vote for acquittal.

The 1999 impeachment of Bill Clinton was another misguided poitical vendetta by the Republicans. With the GOP holding only a 55-45 majority in the Senate, there was no chance for conviction. In the end, five Republicans joined all 45 Democrats to acquit on one of the counts, and ten Republicans defected on the other count.

What these three impeachments all have in common is that in each case some members of the majority party were willing to buck the party line in order to do the right thing and oppose conviction. And how do we know what is the "right thing"? The answer lies in an exchange which occurred during the 1787 Constitutional Convention. When a delegate proposed "maladministration" as a basis for impeachment, James Madison replied that that would be equivalent to a president serving "at the pleasure of the Senate". This ended the discussion, and the higher standard of "high crimes and misdemeanors" was adopted.

The two impeachments of Donald Trump differed from the cases just discussed, in that the Trump impeachments were legitimate impeachments which did involve serious wrongdoing. Consequently, the defections here went the other way; one Republican (Romney) voted for conviction in the first impeachment, and seven Republicans (Burr, Cassidy, Collins, Murkowski, Romney, Sasse and Toomey) voted for conviction on the second impeachment, which was based on the January 6th insurrection.

Returning to our main narrative, Jefferson never did like or respect Aaron Burr, and Burr's patronage suggestions fell on deaf ears. By January of 1804, it had become obvious that Jefferson was not going to choose Burr as his running mate for a second term. Consequently, Burr decided to run for Governor of New York. This race was doomed from the start, as Burr was opposed by Jefferson and the Virginians on one side, and Akexander Hamilton and the radical Federalists on the other side, and Burr lost badly in the April election.

A few weeks before the election, Hamilton made some derogatory comments about Burr at a dinner party, and word of this leaked back to Burr. Wheelan says that "Burr's cordial requests to Hamilton for an explanaton of his remarks indicated that he was willing to resolve the matter peacefully; he gave Hamilton ample latitude to either retract his words, disavow them, or apologize". Hamilton refused these overtures and adopted a defiant tone, resulting in the infamous duel on July 11th, in which he was killed.

Burr stayed in Washington to serve out his VP term, but then he had to figure out what to do next. He couldn't go to New Jersey, where he faced murder charges for the duel, and he couldn't resume his New York law practice, for fear of extradition to New Jersey.

Seeing no future for himself in the East, Burr decided to head West, "where Hamilton had never been popular and where dueling bore no stigma". He bought a 60-foot-long houseboat in Pittsburgh and headed down the Ohio River.

At Marietta, Ohio, Burr learned of a wealthy Irish immigrant and his family who lived on a lush island in the middle of the Ohio River. He was given a microscope to deliver to the man, Harman Blennerhassett. Burr reached the island on May 6, 1805, and was warmly welcomed by Harman and his wife Margaret. They spent a pleasant evening together and Burr continued on his journey downstream the next morning.

In late June Burr reached New Orleans, finding a fascinating mixtue of French, Spanish, Creoles, and Americans. The city was simmering with discontent. From New Orleans Burr headed east through Mississippi and Alabama and then north into Tennessee.

By September Burr was back in St. Louis meeting with General James Wilkinson, who Jefferson had appointed to be governor of the newly-acquired Louisiana Territory. They pored over maps, planning for a joint venture of making war on Mexico. Burr returnd to Washington in November, finding a city buzzing with rumors about his strange journey. The stories were that Burr planned not only the war against Mexico, but also a scheme whereby the western states would secede from the United States.

By March of 1807 Burr had been arrested and was charged with treason in Richmond, Virginia, with Chief Justice John Marshall presiding (in those days the Supreme Court justices "rode circuit"). Interest in the case was so intense that Justice Marshall moved the proceedings from the courtroom to the Virginia House of Delegates, the largest venue available.

Right at the start Justice Marshall was presented with a monumental issue, when Burr and his legal team moved to subpoena documents from President Jefferson. Two days of bitter argument ensued. On the third day the U.S. Attorney prosecuting the case announced that he had heard from Jefferson, and that the president was willing to turn over the documents, after deleting portions that he (Jefferson) felt were not relevant or that contained state secrets. Marshall ruled that the documents must be turned over intact, and the court would decide what could be releaed to the public. Marshall made clear that the president was not above the law, that he could be subpoenaed like any other citizen. However, the president would not have to appear in person, provided he turned over the requested documents. This was the first time that the issue of Executive Privilege came up in the U.S. court system, although that particular term was not used in this instance.

On June 13th General Wilkinson appeared to testify before the grand jury, which was the body considering the case at this point. Wilkinson was universally disliked for the brutal way he had been administering the city of New Orleans, imprisonng his enemies and denying basic human rights at every turn. Wilinson provded a letter from Burr which supposedly supprted the claim of treason. The letter was written in code, but Wilkinson had mistranslated the code to omit evidence of his own involvement in the plot. Unfortunately for Wilkinson, the grand jury broke the code and discovered the translation errors.

On June 24th the grand jury announced indictments of Burr and Harman Blennerhassett for treason, punishable by death. Wilkinson was not indicted, to the consternation of the grand jury foreman, John Randolph, who wrote to a friend that "Wilkinson is the only man that I ever saw who was from the bark to the very core a villain". Randolph was able to get only seven of the sixteen jurors to vote to indict Wilkinson.

The grand jury indictment of Burr and Blennerhassett was for a December 10th gathering on Blennerhassett Island, in which thirty armed men allegedly made plans to capture New Orkleans and then invade Mexico. This took place months after Burr's visit to the island.

Between the indictment and the start of the trial on August 17th, Marshall wrestled with the issue of what evidence would be needed to prove Burr guilty of treason, which the constitution defines as "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court." The issue was whether planning for a treasonous act is sufficient to constitute treason; or, to put it another way, is there such a thing as "constructive treason". In Britain there was, which is to say that merely wishing the King dead was enough to be guilty of treason. As Marshall pondered this, it became obvious to him that our Founders deliberately adopted a stricter standard by requiring an overt act, testified to by two witnesses.

After two weeks of testimony, Marshall spent the weekend crafting a long opinion on how the treason law applied to the facts of the case. His 44-page opinion was delivered on Monday, August 31st. His opinion stated that the required overt act "is not proved by a single witness". The mere assembly of a group did not qualify as "levying war" against the United States, no matter what the motivations of the group were for assembling. The jury was sent out to deliberate with this guidance, and within minutes returned a not guilty verdict.

My main takeaway fronm this whole sorry episode is that my opinion of Jefferson has taken quite a tumble. I used to think he was one of our two or three best presidents, but his vendetta againt Burr shows him to be of much lower character than I had previously thought. For the Burr treason trial the government brought in 140 witnesses, at great expense as most came from great distances. Jefferson monitored the trial daily, showing an inordinate interest in the case. Burr and Blennerhassett were left impoverished by the whole ordeal.

General Wilkinson was long thought to be a Spanish spy, and was paid vast sums by Spain for his information. His spying activity was verified beyond a doubt by documents discovered ninety years later in Cuba after the Spanish-American War. And this is the nefarious character whose information Jefferson relied on to pursue charges against Burr. Jefferson never did have Wilkinson charged, although in 1807 he did remove him as governor of the Louisiana Territory and replaced him with Meriwether Lewis.

Jefferson spent the remainder of his time in office unsuccessfully seeking ways to limit the power of the federal judiciary. Wheelan's summary says that "By any measure, Jefferson's crusade againt Aaron Burr, John Marshall, and the Judiciary was a debacle...Jefferson's actions during 1807 marred an otherwise superlative presidential record.