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.
No comments:
Post a Comment