When some on the committee found Bork argumentative, provocative, speculative, and sarcastic, they suggested these might be better attributes for a law teacher than for a judge. His defenders answered that a justice is not supposed to win popularity contests. When others attacked his apparent coldness toward the plight of blacks, women, or the poor, it was answered (plausibly) that he was not a racist, a misogynist, a grinder of the faces of the underclass. Decisions or agreements that disappointed these “interests” said nothing about their objective plight, only about the limits of the law at issue in each case; his opponents really wanted an “activist” judge, not an “originalist.” Bork seemed to have not only an answer to all his critics, but an exemption from any criticism. Every point of dispute was reducible to the technicalities of his decisions, which were determined not by his preferences or ideology but by the plain intent of the laws involved, of which he was a glass-pane transmitter.
The fault of the committee was that its members either accepted the limits put on their inquiry, or could find no compelling arguments for defying those limits. Beaten back on single items by Bork’s skillful fencing, they dropped their foils and picked up bludgeons. He was portrayed as a monster, more by emotional images than with arguments. Even a law professor named Anita Hill, who had not been pleased by his nomination, was distressed by this treatment of him—as were others who opposed his nomination.
How should the committee have proceeded? Ronald Dworkin indicated the way in this journal: by challenging the originalist claim to be innocent of interpretation. Not only is Bork’s constitutionalism one among many possible schools of interpretation. It is a radical school that would overturn most of the history of the Court—a view that was confirmed by Bork’s post-rejection book, though he denied revisionist aims to the committee.11
A hard look at Bork’s constitutionalism would have revealed that it disguised bias while denying bias. Was it just coincidence that his “original intent” made the founders side with the right-wing groups Bork had cultivated on almost every detail of policy? Hardly. His opposition to civil rights laws had preceded his originalism and perdured through three essentially different readings of the Constitution. When he had to accept the litmus-test Brown decision, while rejecting the Court’s arguments for it, he tried to invent an “originalist” argument, with disastrous result. He asserted that school segregation violated the purpose of the ratifiers of the Fourteenth Amendment “though the ratifiers did not understand that.”12 It is hard enough to discern an original intent that the ratifiers might have entertained. It becomes a mystical exercise to reach one that they never entertained. Bork has joined his enemies here in interpreting purpose—a thing he has refused to do in areas where he did not have to meet a litmus test.
The senators were not sophisticated enough to point out with conviction the inconsistencies and historical flimsiness of Bork’s judicial philosophy. They let him keep returning the argument to his general intellectual competence, which no one questioned. They went after his character instead—character not in the sense of minimal ethical probity but of “judicial temperament” and sensitivity. This is a legitimate ground for questioning a justice’s qualifications. Stephen Carter even puts it higher than a justice’s constitutional views, taken in the abstract:
A legal theory leading to the conclusion that private clubs are not regulated by the Constitution is a matter of debate, a matter of reasonable differences, a matter on which one may take instruction, a matter for a later change of mind. But a lifelong habit of spending one’s leisure time with those who prefer not to associate with people of the wrong color tells something vitally important about the character and instincts of a would-be constitutional interpreter, something not easily disavowed by so simple an expedient as, for example, resigning from the club.
A judge’s ethical sensitivity, his or her moral values, shows in the quality of his rhetoric or the associations she or he cultivates. Robert Bork had a history of throwing ideological red meat to right-wing groups.13 This fit with his description of the attitude of women who submitted to sterilization in order to keep their jobs: “I suppose they were glad to have the choice.”14 Or his treatment of sit-in demonstrators against segregation as “a mob coercing and disturbing other private individuals,” a mob defending itself with “a principle of unsurpassed ugliness.”15 These gleefully insensitive expressions went with a certain deceptiveness in his self-presentation to the committee as uncommitted on ideological matters. He said, for instance, that he had not taken a position on school prayer, though he told an audience in 1985 that “rigidly secularist doctrine” should give place to “some sensible things” like “the reintroduction of some religion into…our public life.” 16
It was the odd combination of assertiveness and slipperiness that made so many who knew Bork’s record oppose his confirmation—not only his four opponents on the Bar Association committee, but two thousand law professors (roughly 40 percent of all law faculties), and thirty-two law school deans.17 They were questioning his character (in Carter’s sense of moral awareness) as well as his constitutionalism. Of the three major testing areas of the committee’s concerns—competence, character, constitutionalism—Bork was vulnerable on the last two. But the senators did not structure the case this way, or focus their criticism efficiently—which left many with the impression that Bork had been rejected because of unsubstantiated vilification by “interest groups.” To paraphrase Bork’s own view of Brown v. Board, the decision was right but it was badly argued.
When George Bush recommended a man of slender accomplishment, a nervously compensatory emphasis on his achievements made him call Clarence Thomas not only “the best man” he could have chosen for the Court (the phrasing in his written speech) but “the best qualified” person (his own claim in answering a reporter’s question). This was so clearly not the case that Thomas’s coaching team instructed him to avoid the area of competence entirely, and of constitutionalism as well, putting all his emphasis on character. This was a shrewd revision of the Bork strategy, which had put all the emphasis on competence, trying to dismiss the other two as irrelevant.
The Thomas strategy was made clear from the outset, even before the hearings began. In his early visits to the senators on the committee, he said his writings should not be taken too seriously, since they were policy statements made when he was in (and speaking for) the executive branch, or speeches that curried favor with his audiences. Senators Kohl and Leahy recalled these conversations during the hearings—how the nominee said that what he had written should be dismissed, since “the real Judge Thomas would come out at the hearings,” the person, the man who had succeeded against the odds.18
In the hearings themselves, Thomas said he had decided to “strip down from those policy positions” taken earlier, in order to be perfectly neutral and impartial. This was a deft way of preempting the charge many nominees run up against, that they undergo a “confirmation conversion” and rid themselves of embarrassing earlier statements. Thomas was quick to say he had undergone a conversion—sixteen months earlier, when he became a federal judge:
I think those of us who have become judges understand that we have to begin to shed the personal opinions that we have.
Today I am a sitting Federal judge, and I find myself in a much different posture. It is a different role. I have no occasion to make policy speeches….
…I had changed roles, and the role that I had was one that did not permit me or did not comport with accumulating points of view.
When one becomes a judge, the role changes, the roles change. That is why it is different. You are no longer involved in those battles.
I have made comment throughout this hearing that when one moves to the judiciary, one must remain neutral….
For me, becoming a judge, as opposed to being in the executive branch, was a dramatic change.
I do not believe, however, that there is a role in judging for the expressions of the kinds of personal views…that you have in the executive branch.19
Though his critics said his brief service on the federal bench had been too short and unproductive of major opinions to be a recommendation, that service turned out to be strategically very useful to him. It offered him a way to cleanse himself of opinions. Everything he had said before was irrelevant—all those attacks on Congress as no longer a competent legislative body; his praise for Louis Farrakhan, and criticisms of Thurgood Marshall; his characterization of the civil rights leadership as doing nothing but “bitch, bitch, bitch, moan and moan, whine and whine.” His earlier endorsements of Oliver North, Ayn Rand, Thomas Sowell, Lewis Lehrman, and the far-right journal Lincoln Review (the only one on whose board he had appeared)—all these were brushed off as entertained for the sake of speculation and free discussion; he didn’t really agree with any of them. He had not even read things he signed, or praised, or endorsed.
This last stand would have been dangerous in any other setting than the one his handlers had carefully structured. It went to his competence. Over and over he had to mount what might be called an “out to lunch” defense. He was ignorant of the Lincoln Review‘s backing and positions on South Africa. He did not read the article by Lewis Lehrman which he had praised so highly. He served on a family council headed by the religious right leader Gary Bauer without ever learning what was in its report (to which he contributed). He had been a law student, lawyer, and judge in the era when Roe v. Wade was the hot legal topic, but had formed and expressed no opinion on it at all. Why had he not? Here as usual, Thomas brought everything back to his life story, demonstrative of his character. Addressing Senator Leahy’s incredulity that Thomas could avoid discussions of Roe in law school at the very time it was decided, Thomas said:
Because I was a married student and I worked, I did not spend a lot of time around the law school doing what the other students enjoyed so much, and that is debating all the current cases and all of the slip opinions. My schedule was such that I went to classes and generally went to work and went home.20
It was a brilliant strategy Thomas was following—to bring every issue back to the person, not his views; to concentrate on the hard-working man from little Pin Point, Georgia, who had made good by hard work, family values, and the overcoming of obstacles. Thomas stuck to this game plan with admirable discipline, and it showed every promise of working. There was high risk in courting doubt about competence, but he and his advisers correctly doubted the senators’ stomach for calling a black man ignorant. I said earlier that the Senate realizes it cannot reject a black man or woman just because they are black or female. But attacking Thomas’s intellect might look as if they were doing just that.
11 Ronald Dworkin, "The Bork Nomination," The New York Review, August 13, 1987, pp. 3-10; and "The Bork Nomination: An Exchange," October 8, 1987, pp. 59-61. In his book, Bork argues that the Court has decided incorrectly on landmark cases all the way back to Marbury v. Madison ("Marshall argued, quite incorrectly... None of this made much sense"), throughout the New Deal decisions ("due process protection of economic liberties has never returned"), culminating in Roe v. Wade ("the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century"). See Bork, The Tempting of America, pp. 23-24, 42-43, 44, 46, 61, 116. These claims come from a man who told a college audience in 1985: "If you become convinced that a prior court has misread the Constitution, I think it's your duty to go back and correct it...I don't think precedent is all that important," and who told the Federalist Society, "An originalist judge would have no problem whatever in overhauling a non-originalist precedent because the precedent, by the very basis of his judicial philosophy, has no legitimacy." Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (Norton, 1989), pp. 258-260. This was, indeed, Dworkin's "radical," not a conservative. ↩
12 Bork, The Tempting of America, p. 82. ↩
13 For example: Originalism "will sweep the elegant, erudite, pretentious and toxic detritus of non-originalism out to sea." Bronner, Battle for Justice, p. 258. ↩
14 Bronner, Battle for Justice, p. 236. ↩
15 Robert Bork, "Civil Rights, A Challenge," The New Republic, August 31, 1963. ↩
16 Bronner, Battle for Justice, p. 93. See Bork, The Tempting of America, p. 309: "Senators said that I favored school prayer (a subject I have never addressed)..." ↩
17 Bronner, Battle for Justice, pp. 298–300. ↩
18 Senate Judiciary Committee, Thomas Hearings (J-102-40), Part 1, pp. 266, 473, 483. ↩
19 Thomas Hearings, Part 1, pp. 183, 190, 224, 267, 352, 473, 483. ↩
20 Thomas Hearings, Part 1, p. 222. Even if Thomas's account of his drawing a blank on the subject at law school is to be believed, it does not explain his lack of an opinion about the case even when citing it or praising statements that attacked it. As Senator Leahy said (Thomas Hearings, Part 1, p. 223): "You have participated in a working group that criticized Roe. You cited Roe in a footnote to your article on the privileges of immunity clauses. You have referred to Lewis Lehrman's article on the meaning of the right to life. You specifically referred to abortion in a column in the Chicago Defender. I cannot believe that all of this was done in a vacuum, absent some very clear consideration of Roe v. Wade...." ↩
Ronald Dworkin, “The Bork Nomination,” The New York Review, August 13, 1987, pp. 3-10; and “The Bork Nomination: An Exchange,” October 8, 1987, pp. 59-61. In his book, Bork argues that the Court has decided incorrectly on landmark cases all the way back to Marbury v. Madison (“Marshall argued, quite incorrectly… None of this made much sense”), throughout the New Deal decisions (“due process protection of economic liberties has never returned”), culminating in Roe v. Wade (“the greatest example and symbol of the judicial usurpation of democratic prerogatives in this century”). See Bork, The Tempting of America, pp. 23-24, 42-43, 44, 46, 61, 116. These claims come from a man who told a college audience in 1985: “If you become convinced that a prior court has misread the Constitution, I think it’s your duty to go back and correct it…I don’t think precedent is all that important,” and who told the Federalist Society, “An originalist judge would have no problem whatever in overhauling a non-originalist precedent because the precedent, by the very basis of his judicial philosophy, has no legitimacy.” Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (Norton, 1989), pp. 258-260. This was, indeed, Dworkin’s “radical,” not a conservative. ↩
Bork, The Tempting of America, p. 82. ↩
For example: Originalism “will sweep the elegant, erudite, pretentious and toxic detritus of non-originalism out to sea.” Bronner, Battle for Justice, p. 258. ↩
Bronner, Battle for Justice, p. 236. ↩
Robert Bork, “Civil Rights, A Challenge,” The New Republic, August 31, 1963. ↩
Bronner, Battle for Justice, p. 93. See Bork, The Tempting of America, p. 309: “Senators said that I favored school prayer (a subject I have never addressed)…” ↩
Bronner, Battle for Justice, pp. 298–300. ↩
Senate Judiciary Committee, Thomas Hearings (J-102-40), Part 1, pp. 266, 473, 483. ↩
Thomas Hearings, Part 1, pp. 183, 190, 224, 267, 352, 473, 483. ↩
Thomas Hearings, Part 1, p. 222. Even if Thomas’s account of his drawing a blank on the subject at law school is to be believed, it does not explain his lack of an opinion about the case even when citing it or praising statements that attacked it. As Senator Leahy said (Thomas Hearings, Part 1, p. 223): “You have participated in a working group that criticized Roe. You cited Roe in a footnote to your article on the privileges of immunity clauses. You have referred to Lewis Lehrman’s article on the meaning of the right to life. You specifically referred to abortion in a column in the Chicago Defender. I cannot believe that all of this was done in a vacuum, absent some very clear consideration of Roe v. Wade….” ↩