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From Bork to Kennedy

1.

Judge Bork’s defeat is already history; we have since had the farce of Ginsburg’s downfall and have now the Kennedy nomination to worry about. But a second battle over Bork is under way—the battle over the best explanation of his defeat—and though I shall have to consider whether and why Judge Kennedy is a more attractive nominee than Bork was, the meaning of Bork’s loss is my central concern here. Judge Ginsburg’s destruction was sad, but it raised no issues of constitutional dimension. Of course it is absurd and embarrassing that his occasional use of marijuana several years ago while he was a law professor should be thought to have disqualified him. Smoking pot is and was illegal, and law professors should not break the law. But a professor who confessed that he broke the speed limit on occasion, or had once or twice driven after a few drinks, would not have been punished as Ginsburg was.

There were, however, more serious complaints against him. He was only a journeyman academic lawyer and had not shown any particular distinction in his brief career as a judge. He had used bad judgment as a deputy attorney general, moreover, in participating in a matter that might well have substantially affected his own financial interests. He should not have been nominated, but his unfortunate story is of no general importance beyond confirming what we already know about the hypocrisy and incompetence of the Reagan administration.

Bork’s defeat is another matter, and the argument about what really happened to him is likely, as I shall try to explain, to have serious consequences for constitutional law. We must distinguish between two aspects of that argument. The first is a question of explanation. What caused Bork’s defeat? How important, for example, was the fierce opposition of groups representing black voters? The second is a question of interpretation. What does Bork’s defeat mean? Did the American public reject Bork’s announced philosophy of original intention? If so, what alternative constitutional philosophy, if any, did the public endorse? These two very different questions are obviously connected, because we cannot intelligently consider the meaning of Bork’s defeat until we have some grasp of what factors actually caused it. So though my main interest is in the second, interpretative, question, I shall begin with the first.

When Bork was nominated last June, most commentators expected that although he would be opposed bitterly by a few liberal Democrats, he would nevertheless be confirmed fairly easily in the end. Relatively few Supreme Court nominees have been rejected, even when the Senate was controlled, as it is now, by a party opposed to the President’s. Everyone seemed agreed that a president may name justices to suit his constitutional views, and that the Senate may properly reject his choice only if it is dissatisfied with the nominee’s personal integrity or competence.1 Since no evidence appeared to discredit Bork personally, and since he was plainly an able man, it seemed almost impossible that he would join the small list of defeated nominees. In the end, however, he was defeated by a greater margin than any other Supreme Court nominee in history. What caused that remarkable result?

Any adequate answer must give due weight to many different factors. Reagan’s growing political weakness played a part. So did the political skill of the liberal senators opposing Bork. Senator Kennedy, in particular, was extremely effective in persuading other senators who might have been expected to endorse the nomination at once to delay long enough so that arguments might have an impact publicly. Liberal political action groups decided at once to oppose Bork, and they found it surprisingly easy to raise money from public contributions to do so. They organized petitions, bought television advertising, and persuaded other groups to join in their efforts. Black groups were undoubtedly particularly effective, especially in influencing southern senators like Howell Heflin, a key member of the judiciary committee, who had been elected with 80 percent of the black vote. The nomination was lost, in part, in the civil rights marches and voting registration drives of the Sixties.

Bork’s most extreme supporters argue that the groups opposing him, which they call a “lynch mob” of “special interests,” deliberately distorted his views by calling him a racist or a moral bigot and suggesting that he approved of sterilizing women. The political campaign against Bork did indeed include misleading comment. Bork’s supporters complain particularly about a 60-second television spot narrated by Gregory Peck and produced by People for the American Way, a liberal political action fund. Though that organization knew better—it produced an excellent and scrupulously fair scholarly report on Bork’s judicial career—the Peck commercial was indeed misleading in several respects.2 But the unfair advertising against Bork was matched by equally unfair advertising for him. And the advertising on both sides seems unlikely to have had anything like the effect on forming the public’s conception of Bork’s views that the Senate Judiciary Committee’s hearings themselves had.

The hearings lasted nearly three weeks; most of them were broadcast in full on public service and cable networks, and large portions were replayed on prime-time television news broadcasts. Though Senator Biden, the committee chairman, had announced his opposition to the nomination when Reagan made it, he conducted the hearings with evident fairness: Bork was not only allowed but encouraged to explain and defend his views in as much detail, and with as much clarification, as he wished. The argument and discussion of the hearings were often of extremely high quality—foreign visitors who tuned in were astounded—and were sometimes, as during a long Saturday morning discussion between Bork and Senator Arlen Specter, of academic depth and rigor.

Those who watched the hearings on television and followed the reports of them in the press seemed fascinated, delighted to join an extended seminar on the Constitution in its bicentennial year. The most damaging views about what Bork thinks—that he rejects a constitutional right to privacy in matters of sexual intimacy, for example—were learned from the judge himself. The right-wing charge, that senators and public alike were gulled by unscrupulous liberal broadcasts, is not only amusing (remember what the right did in Rose Bird’s judicial reelection campaign in California last year) but insulting, and it has no support in the record. The charge is interesting only because it suggests how fearful right-wing commentators are that Bork’s loss will be interpreted as a jurisprudential as well as a political defeat.

Other factors, beyond politics and the argument of the hearings, must have had some influence on the result. In the early days of the hearings, for example, a new issue emerged which, while not exactly a matter of personal integrity, nevertheless approached one: the issue of what was immediately called the “confirmation conversion.” Bork appeared suddenly to have changed his mind about some of his fiercest and longest-held opinions on constitutional law and theory, many of which he had repeated in speeches as recently as last January.3 To some it seemed that he was jettisoning the views that had earned him right-wing support for the nomination in order to make confirmation by a Senate controlled by Democrats more likely; and some senators speculated that this kind of flexibility might be undesirable in a justice.

Bork’s performance as a witness was in other ways not as impressive as it was expected to be. Though the White House had predicted he would prove a second Ollie North, he did not capture public sympathy, perhaps in part because he was shifting as well as defending ground, perhaps in part for the much worse reason that he seemed too dry and academic and lacking in charm.

The opinions of Bork’s peers must also have contributed to his defeat. In early September, before the hearings began, the American Bar Association’s prestigious committee which rates judicial nominees reported a split vote about Bork’s qualifications: while eight members found him very well qualified, three found him unqualified, and one was willing to vote only “not opposed.” Though more witnesses supported the nomination at the hearings than opposed it, and though Bork’s supporters included a former president (Ford) and chief justice (Burger), and three former attorneys general (William Rogers, Griffin Bell, and Edward Levi), as well as hosts of distinguished law professors and lawyers, the opposing witnesses seemed to have the better of the argument, mainly because they talked about the substance of Bork’s announced views while his supporters mainly praised his character and mental ability. But the most extraordinary and devastating judgment was delivered by Bork’s former academic colleagues: 40 percent of the faculty members of all accredited law schools in the United States signed petitions calling on the Senate to reject him.

2.

Liberal commentators and politicians insist that the Bork episode settled something larger than whether he should be promoted to the Supreme Court: that the nation also declared its will on fundamental issues of constitutional jurisprudence. The right wing seems to accept, or at least to fear, that that claim is true; nothing else could explain its savage fury at Bork’s defeat.4 No one thinks, of course, that the nation engaged in an actual referendum, conducted through senators’ mailbags and public opinion polls, in which a majority of Americans reported their considered opinions on matters of constitutional jurisprudence. But the public apparently sensed the constitutional importance of the Senate’s decision; and it is part of our constitutional tradition, in such circumstances, that the nation as a whole is regarded as more committed than it was before to the principles that provide the most convincing justification for what the Senate did.

We treat other political events in our history as calling for interpretation in the same sense and with the same consequence. Constitutional lawyers say that the history and the outcome of the Civil War showed a national commitment to some form of racial equality, and they mean this not as a historical explanation of the causes of the war—that would be much too crude and misleading a claim—but as a principle essential to any justification of the slaughter. There are less dramatic examples. When Franklin Roosevelt was forced to abandon his court-packing plan at the height of his political popularity, for example, lawyers offered an interpretative account of his failure: they said that the country rejected the plan in defense of the principle of judicial independence. The debate over Bork, like the debate over Roosevelt’s plan, left the public in no doubt that the issue was one of constitutional principles, and no senator could have justified his vote on any other grounds. So it is inevitable that the result, the first Court nomination defeat over a question of constitutional principle in half a century, will be treated as an event of constitutional dimensions, and that explains why it seems natural to everyone, Bork’s opponents and supporters alike, to claim or fear that the defeat will be treated as having settled something, at least for a time, about our fundamental law.

  1. 1

    Nixon’s nominations of Clement F. Haynsworth and G. Harrold Carswell, and Johnson’s promotion of Abe Fortas to the office of chief justice, were all rejected, but in each case the announced reasons were doubts about the candidate’s ethical or intellectual qualifications. Thirty-three Democrats did vote against Reagan’s nomination of William Rehnquist, then an associate justice, to succeed Warren Burger as chief justice. But most of them felt it necessary to justify their votes on grounds of character—charges had been made that Rehnquist had not acted properly as a trustee in a family matter, and the deed to his vacation house contained an (invalid) racially restrictive covenant. Antonin Scalia, a very conservative law professor whom Reagan had appointed to the same circuit court on which Bork sat, and against whom no charges of personal fault had been brought, was confirmed as associate justice in Rehnquist’s place with not a single vote against him.

  2. 2

    The Peck advertisement made four claims about Bork’s record. It said that he “defended poll taxes and literacy tests,” which suggests that he approved these devices for keeping people from voting; in fact Bork argued only that the Constitution did not make the devices unconstitutional. It said he opposed the civil rights laws (as he did, in 1963) but failed to add that he has changed his mind since. It said he thinks that free speech does not apply to literature, art, and music; without adding that, though he took that position without qualification in 1971, he recently said that freedom of speech does hold for the arts because, as he had not recognized then, the arts have a bearing on politics. It said, finally, that he “doesn’t believe the Constitution protects your rights to privacy,” which is true, and, on the evidence of the hearings, the single most convincing charge the advertisement made.

  3. 3

    Though he had argued for years that the Equal Protection Clause of the Fourteenth Amendment gives special protection, against discrimination only to racial and ethnic minorities, for example, so that the Supreme Court was wrong in supposing that it provided the same kind of protection to women, he offered the committee a very different view. He had also condemned the Supreme Court’s holdings, in a long line of cases whose reasoning can be traced back to Oliver Wendell Holmes’s famous dissents, that speech advocating violence is protected by the First Amendment, so long as the danger that it would actually incite violence is not clear and immediate. Over two days he seemed at first to withdraw his objection to the Court’s view, and then to reassert it again. Some shifts were more subtle: he had said that the Court’s opinion in Griswold v. Connecticut, forbidding states to outlaw contraceptives, could not be supported by any proper argument, and was therefore itself “unconstitutional.” In the hearings he said he meant only to criticize the reasoning the Court had actually used in deciding the case, and had no opinion about whether a better argument for the Court’s decision could now be found.

  4. 4

    The Wall Street Journal, for example, in a series of editorials that amazed conservative as well as liberal lawyers, accused Bork’s opponents of a “bloody campaign of distortion” and proposed that Reagan reappoint Bork, even after his defeat, during the next congressional recess (which would have insured that Reagan could make no lasting appointment to the Supreme Court at all). The Journal also suggested that Bork’s impending defeat caused a stock market fall, advised Reagan not to appoint any southern judges to the Court in order to punish the southern Democrats who had voted against him, and finally warned that the “victors” in the fight against him would “pay” for their victory. The Journal’s editorials were only the most conspicuously berserk of the articles and speeches and opinions published everywhere on the right.

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