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Ethan Bronner

Author, Battle for Justice: How the Bork Nomination Shook America

Ethan Bronner is a senior editor at Bloomberg News and previously served as the deputy national editor at The New York Times. He is the author of Battle for Justice: How the Bork Nomination Shook America.

This is a transcript of an interview with FRONTLINE’s Michael Kirk conducted on January 30, 2019. It has been edited for clarity and length.

This interview appears in:

Supreme Revenge

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The Nomination of Robert Bork

When Reagan picks Professor [Robert] Bork, what is the state of play for the Supreme Court, the Reagan administration?We're in the last basically year of the Reagan administration.Why Bork, and what are they after?

So this was 1987.Lewis Powell had announced his retirement, and Lewis Powell was that pivotal vote who was sort of the middle of the court.Someone once described him as the most powerful man in America because of that.So his departure meant that if they could get a reliable conservative on the court, then a lot of reliably conservative issues could be pushed through: abortion, affirmative action, issues of gay marriage.All those questions were bubbling up in those years.Not quite gay marriage, but certainly issues related to it, the questions of rights of people to have homosexual sex.

So for the people around Ronald Reagan, especially in the Justice Department, the people who cared about these issues, this was a very important moment, and Bork was a guy who was very much their hero.He had been sort of leading a counterrevolution of the law over the previous 20, 25 years, to push the law to the right.The law and the court had been dominated since the late ’50s, mid-50s, by a much more liberal jurisprudence, right?

This was a very important moment.And the truth is that in the Reagan Revolution moment, it was the court and issues of the law were many ways the most significant things that they had.They were very eager to push back on affirmative action, very eager to push back on privacy, abortion questions, so this was their place to do it.

The Case Against Robert Bork

…[When Bork is nominated], what does [Ted] Kennedy (D-Mass.) say, and how important is that first salvo?

…Less than an hour—45 minutes, shall we say—after the president nominated Robert Bork, Ted Kennedy took to the floor of the Senate and in apocalyptic terms described what this nomination, if successful, would mean.He spoke about back-alley abortions; he spoke about all sorts of people not having access to the courts; he spoke about the inability to teach evolution in the country and that decades of civil rights law were at stake.So he spoke in very, very stark terms about what this would mean.

…So let's talk a little bit about the war room, the Democrat war room, the ads that Gregory Peck [did], all of that, the murder boards, and [Laurence] Tribe in the midst of all of that?

So the Democrats—of course, on these issues that we've just been discussing, there was an incredible desire to push back and to make sure that Bork not get on the court.It is also true that by the fall of 1987, Democrats were so ready to push back against the Reagan Revolution and Reaganism.The Iran-Contra affair was already underway.And so there were a lot of reasons they thought that the White House was vulnerable and that this was a win that they could have.

So Larry Tribe, Laurence Tribe, who is a professor, was a professor of law at Harvard and very knowledgeable, a constitutional scholar of the liberal persuasion, had been priming people on the Senate Judiciary Committee, Democrats of course.And then there was a whole series of civil rights and women’s rights organizations that had been ready for Bork.They thought, actually, when Antonin Scalia was nominated the previous year or two [earlier] that it might well have gone to Bork.In fact, it didn't.But this time they were ready.

So they prepared a whole set of things.Teddy Kennedy devoted months to fighting this.He made hundreds and hundreds of phone calls.This is, of course, pre-internet, pre-email.But he made hundreds of phone calls.And he would call small-town mayors; he would call leaders of black organizations, black preachers throughout the South and say, “This is the thing we all need to fight together on, to stop Robert Bork.”

And as you said, they—and they had murder boards.They warmed up senators and developed a whole series of ways to go after—there was a public campaign, television ads, print ads, very, very unusual for the Supreme Court.In fact, I think unprecedented.

On the Republican side, Al Simpson (R-Wyo.)—

Orrin Hatch (R-Utah).

[Arlen] Specter (R-Pa.), Orrin Hatch, the White House people, not really ready for this campaign against Bork.

That's true.I want to say one other thing, which is that there remained in the Reagan camp those who were ready but who were not given the platform that they thought they needed.Among them, John Bolton, our current national security adviser, was the Justice Department’s liaison to Congress.Had studied with Bork at Yale Law School; was an acolyte, a great, great fan of his and very much the kind of classic Reagan Revolution foot soldier.He is the son of a firefighter from Baltimore, working class, Catholic, completely believing that the movement of the law by the left was illegitimate and this was the moment to fight it.

So he desperately wanted to fight on the same level that the left was fighting against him, but he wasn't given permission by the White House.And at a certain point he said to Bork, “Don’t listen to them; you’ve got to listen to me,” but Bork listened to them.

Well, exactly.But he didn't listen to them about some things because he said: “Look, I'm going to be Bork.You're not going to do.”They do a murder board, and he’s just sort of, “Yeah, yeah, I’ll answer that my way.”

Right, that's true.He refused, really, to do the murder board.That's true.Bork said, “I'm not going to play a game here.”

Right.And the beard?

Right.Well, this is the long and interesting issue about Robert Bork is that he looked like a leftist intellectual.He lived among leftist intellectuals at Yale.But in fact, he was a very firm mover of intellectual processes of the law to the right, and it is thought that his look did not help him.There was a sort of paradoxical thing, which was that he had, after the death of his first wife of cancer, married a former nun and was on his way toward becoming much more religious.Ultimately, 20 years after this, converted to Roman Catholicism.But at that point, the left sent messages into the black churches in the South that they needed to stay away from this man because he was an atheist.So he was an atheist with a beard and long, weird hair, so they got him coming and going.

His son says sitting behind his father was just so painful because he wanted him to just kind of shut up and just stick to the party line—“Don’t say too much,” don’t whatever.But in fact, Bork comes to the party ready to teach, ready to be Bork.

Robert Bork and the “Intellectual Feast”

That's right.The hearings themselves, Bork refused to play the game, if you like.He was given softball questions by Republican senators, and he did not do what was needed of him politically, which was to persuade the senators and the public watching on television that he cared, that he believed that the courts had helped people who were otherwise left out of the political system.

Instead, he talked about the law as an “intellectual feast.”He talked about the possibility of serving on the court as an intellectual feast.When he was asked by, I believe it was Sen. Alan Simpson—

Yes, it was.

—“Why do you want to serve on the court?,” it wouldn’t have taken much, but his pride played a role, I believe.And also, he had this notion that the law had become sentimentalized by the left, and it was time to put it where it belonged, which is it is a set of rigid principles written down.The Constitution is not some document that will grow.No, it is what it is.And if the majority, through their legislatures, want to give it a greater detail, that is their job; it is not mine as a judge.

And of course that sounds good.That turns out to be less clear than he made it sound, but that's right.Judge Bork in front of the senators did not campaign in a way that he needed to do beat the skepticism.

Joe Biden (D-Del.), he’s new, relatively new.There he is at the center of it all.Kennedy had been the chairman but had moved over one seat.What does he bring to the hearings as he sits there in the hot seat for this all-important fight?

…I had this notion that Joe Biden and Ted Kennedy have a kind of weird, inverse relationship, which is that one, he's pretty smart and not very articulate—that would be Teddy Kennedy—and the other is very articulate and maybe not a genius, and that would be Joe Biden.And Joe wanted very much to show—he’s always had that “good guy Joe” quality to him, and he was eager to show that he was going to treat Judge Bork with decency and appropriately.

Now, of course at the same time, Sen. Biden wants to run for president, so he’s got a lot of stuff going on.And he began by, I think, thinking, well, we can't really prevent this guy from coming onto the court.There's no issues of character, any corruption questions.The president has the power to name, and we are here to approve, unless those other things come up.

But in the course of the weeks and months of the campaign against Bork, he got on board.And I don’t mean to say it was without a sense of principle.I think the thing that's fascinating about the Bork battle is that the idea that a judge’s ideological disposition is enough to keep him off the court gained a kind of legitimacy that it had not had before, and I think appropriately so.I think it’s appropriate and legitimate that if someone’s position seemed to be way out of where you want him to be that that's a legitimate basis for voting against him.

And I think Joe Biden came on board with that.He had his problems because during the course of this, he was shown to have plagiarized a speech by a British Labor Party leader and he had his political weaknesses.But he did, I think to be fair to him, run the hearing quite well.

…Robert Bork had to deal with several things.One of them was that—and he was the solicitor general in 1973 under Richard Nixon when Nixon wanted to fire the special prosecutor, Archibald Cox, who was looking into Watergate.And the attorney general at the time refused; the next person refused.But then it came to the slot of solicitor general, and Bork did it, so in some way—it was called the Saturday Night Massacre because of the number of people who were fired on a Saturday night.

In some ways, there were a lot of things.There was that.There were other issues.There was the question of whether he had made too much money.But I would say what's most remarkable about the Bork battle is those things fell away.It came down to his view of the Constitution’s relationship to civil rights, privacy, women’s rights.Those were the things that made the big difference, and that in its own way was remarkable.There was a moment on the last day of the hearings that ended up going into a Saturday.So it was a Saturday with Arlen Specter, a moderate Republican [from Pennsylvania], who ultimately voted against Bork, asking him about his view of the Constitution, and Specter said: “You know, you have a fairly expansive view of executive power.You have written that executive power has to expand given where we are.Well, why is that the one that has to expand and not civil rights and not the right of privacy?I charge you,” effectively he said, “with selecting the rights and the powers that you would like to see expand, and you do that out of ideology, not out of any neutral principles that you claim to base your jurisprudence upon.”

And instead of doing what every nominee after Bork would have done at that moment, which is to say, “I can't talk about those things.If I'm on the court, I'm going to have to answer questions.This is not the forum for that.Trust me; I have thoughts”—

It’s true.Well, there are a few things.Bork, first of all, did say, “Some of the things I've said and written I would rethink.”And then he was sort of accused of a confirmation conversion.And then there were other times where he simply defended his view about privacy, for example.And look, the issue of privacy is a complicated one in our constitutional history.We have the 1965 case, Griswold v. Connecticut, in which the head of Planned Parenthood in Connecticut sued the state of Connecticut for barring the sale of contraceptives in the state of Connecticut.And the Supreme Court said that such a law was unconstitutional, written by William O. Douglas, and it spoke of an unnamed right of privacy, spoke about emanations from the other rights that gave Americans a core right of privacy.A lot of people who deal with constitutional interpretation felt that it was a pretty loose piece of writing.They were not so crazy about it.And there are those others who said that the way the system should have worked is the way effectively gay marriage worked many years later, which is to let state by state build it up.

Also, in miscegenation in marriage, the Loving v. Virginia case in the ’60s.There was an interesting case where already a dozen or 15 or 18 states had taken that step, so it sort of created a momentum, and that had not yet happened here.So there were a lot of people upset with it.But instead of his sort of putting it in context, he stuck with why he was right to have opposed it.And that was a problem.

…Tribe helps the Senate, the Democrats, and then he testifies.And his testimony, I gather, is viewed as a very important part of what takes place.

I'm not sure that that's true.… I mean, his role was significant.

In what way?

Well, because Tribe, who had written a very significant, huge volume on interpreting the U.S. Constitution and was a professor of constitutional law at Harvard and was very articulate, remains very articulate, he sort of argued that all these things that Bork has been saying are simply unsustainable; they're not correct.So he, in his own articulate way, from a liberal perspective, pushed back against what Bork was doing.

Now it’s also true that today we have the Federalist Society; we have the whole kind of infrastructure behind the Borkian jurisprudence view.At that time, it was very nascent.And, in fact, one of the things that happened as a result of the Bork battle was the growth of the Federalist Society.

Why?

Because there were others like him who felt that what had happened in the academy and on the courts was a movement that had gone too far to the left, too loosey-goosey approach toward law, and that it was sort of—although the early civil rights decisions of the ’50s, Brown v. Board of Education and so on, were making up for the majority’s abuse of minorities over many decades in our history, that the development of affirmative action, other things like that, had gone too far and were creating an abuse of the majority.Whether you agree is irrelevant, but that was the feeling: that the law had lost its moorings, and it was time to bring it back to where it belonged.And he was a pioneer in that, Bork.And we see that actually today in the Trump era.

In what way?

I mean, President Trump has named dozens and dozens of conservative judges around the country, and these are people who buy into this idea that the Warren court of the ’50s and ’60s and the general jurisprudence of the law schools and the courts from the mid-50s to 10 years ago distorted our law too far to the left.

When you talk to people about what happened, did they know?When did they know that Bork had cooked his own goose?

…After the committee voted him down, the White House basically called him in and said, “Judge Bork, we don’t think you're going to make it, and it’s really fine, and we wouldn’t mind if you withdrew.”And he said: “No way.I'm hanging in here for this.I'm fighting to the end.”

Do you know why?

I think it was a matter of pride, and also a matter of making a statement that we're not going to let these senators off the hook.They're going to put their votes down, and then our guys are going to go after them ultimately.We're going to make our point.

The Lessons of the Bork Nominmation

So that in the writing of the book, when you talked to people about this, what was the big take-home from Bork?

On the left or on the right?

Well, OK, that’s a very good question.So let’s start with the Democrats.What did they think had happened to them or for them that was of value and importance in taking Bork down?

I think the most principled conclusion that was drawn from the defeat of Bork by the Democrats was that the country, in fact, was on the Democrats’ side on these issues of—the three hot issues are sex, race and religion, and that the country was not ready to start lowering the wall significantly between church and state, not ready to go back on questions of abortion and privacy, not ready to go back on questions of civil rights and affirmative action.That was the conclusion they drew.Those were the issues on which this nomination foundered, and that it was legitimate and appropriate to look at someone’s writings and ideology and history and make those the basis for a rejection from the Supreme Court.I think that was one thing.

A second thing, of course, was that the Reagan administration was weakened by 1987, and vulnerable.And in fact, they didn't win.The Democrats didn't win in 1988—it went to George Bush—but they felt that the Republicans were much weaker than they'd been in the course of—I mean, don’t forget, in 1984, Reagan won by a huge landslide in his re-election.So I think those were the two core issues that were—core conclusions that they drew.

And if I said what did the Republicans take from that battle?

I think what the Republicans took from the defeat of Robert Bork was the sense that dirty fighting was going to happen over Supreme Court nominations, and they were going to be ready.A, they already, within months, put out a set of publications making clear that if Larry Tribe were ever to be nominated by any Democratic nominee, they would go to war to stop him, and anybody like that.

So one of the things that has evolved is that the court is hard to get onto if you have a long history of controversial views, even sort of experimentally controversial.Let’s do a thought experiment.That’s a problem.So in many ways, we could argue that the country may have been the loser.

The Rise of the Federalists Society

One of the other things that happens is, of course, the energizing of what becomes the Federalist Society.

Yes, that's true.So I don't think the Federalist Society yet existed?

It did.In ’81, ’82, it was on college campuses.

…So, one of the things that the Republicans and conservatives drew from the Bork defeat was that they needed to rev up their machine for the Supreme Court and for the federal bench generally, and for the law generally, to get their guys—not just guys, their folks—onto benches and also into law schools, so that the discussion of the law would no longer be Larry Tribe is right and Bork is like some weirdo, but that in fact Larry Tribe has distorted what the law is and should be, and we're going to right it.

And that became an enormous endeavor, which we see having succeeded to some extent in the sense that President Trump, one of the things he is most praised for even by those who dislike him for many other reasons on the right is his nominations.They all come through the Federalist Society.

The Made-for-Televsion Bork Hearings

[At the hearing, there was attention to stagecraft.] …So they were worried about the camera angles.They were worried about—yeah, at one point, Biden is raised up, and there's no aides behind him when he gives the opening thing.But they really saw this as a television production.

…One of the things, because Joe Biden was running for president at the time, his staff set the hearing room up in a way to elevate him and to make him shine and turned it into a kind of TV reality-show event.They chose particular places where cameras could go that would be the least flattering for Robert Bork.And also, when Joe Biden made his opening statement about the meaning of it all, his aides were not behind him, so there was a kind of Oval Office quality almost to what he had to say.And he elevated the senators above the judge so that he would be having to look up and they look down.So there was quite a lot of stagecraft involved as well by Biden.

Energizing Civil Rights Groups Against Bork

My other question is when Kennedy is trying to get the civil rights groups and others exercised about Bork, what's the argument he's making?How important is race and the race issue in Bork and in bringing together the coalition?

OK, so you want me to just expound on that?

Yeah.

One of the reasons that Ted Kennedy called black politicians and black preachers throughout the country, and especially the South, was because Robert Bork had in 1963 and ’64 written what became a notorious article for The New Republic, which was to raise objections to public accommodation laws.These were laws that say, “I can't not serve you in my restaurant based on your race.”Until then, there was no such law.

And Bork said: “Look, I have no objection, of course, to—if you want to serve black people, I'm all in favor; I'm not opposed to that.But I'm opposed to the government telling you what you can do in your property.This has to do with the improper role of government shoving liberal notions down our throats.”

He eventually said that he regretted the piece.But the fact is that everything that Bork had written and stood for meant that the civil rights and affirmative action push of the civil rights movement was in danger on the court.And therefore it was the central issue, really, even more in some ways than women’s rights.But women’s rights were significant.But race and civil rights became the core organizing principle of the liberal opposition to Bork, and Ted Kennedy was their leader in that sense.

The Legacy of the Bork Nomination

…After the Bork rejection, just [talk about] how the tone from then on on all Supreme Court nominations changed to some extent, how it became more political or how you view from that point on how it had changed.

After the Senate rejected Bork, the anger on the right was really profound.George Will, the conservative columnist, said that there was a new verb that we needed to use; it is “to bork, to be borked,” which is somebody nominated for something and defeated for inappropriate, illegitimate reasons, as a political witch hunt.And there became a whole movement that said we are going to do to your guys what you just did to our guy.

So it’s also true that over the last 30 years, our politics have grown far more polarized, and of course the Trump election is seen as the …example of that.But this felt very strongly [that] the case around judicial issues, judicial nominations and everything became much tougher in the world of judgeships as a result of the Bork defeat.

Now, you know, you don’t have a test group in life.You can't say without Bork would it have happened?But clearly it was headed in that direction, and he stood in for it all and became the symbol of it.But yes, there's no question that judicial nominations and the role of the courts got sucked into the whirl of politics in a way after the Bork defeat that they hadn’t been before.

They called it the “original sin.”

They did.Some did call it the “original sin.”

And what does that mean?

As a result of this failure, human history or American history took on a certain path, yes.

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