Ethan Bronner

When Justice Powell retired, the search began for a suitably conservative justice. Bork's name had always been in the running but he had been passed over numerous times in favor of O'Connor, Rehnquist, and Scalia. Bork was unhappy dealing with purely administrative law issues on the Appeals Court for the DC circuit, the traditional stepping stone for Supreme Court justices, but he had always desired to be on the court. The only one that really counted if one wanted to have a substantial impact on the law and society. And he had an agenda.

The Democrats had taken the majority in the Senate in 1986, but many of those Democrats were hardly liberal. Bork never knew what hit him. The result, of course, was the seating of Anthony Kennedy who turned out to be about as conservative, with some exceptions, as they had hoped Bork would be. Bork, according to one conservative commentator, was a political neophyte. Had the Reagan folks been truly smart they would have nominated Phyllis Schlafly as a stalking horse who would have given as much as she received, and after voting her down the Senate would have confirmed Bork unanimously while licking their wounds. They had, after all, confirmed a much more conservative Scalia, in an almost unanimous vote just a few months before. "Suddenly this medieval scholastic, accustomed to a university environment where ideas have no practical consequences, found himself in a universe where it is generally agreed that a straight line is the shortest distance to disaster."*

"Robert Bork was a man of war. He struggled with everyone, especially himself. A restless, ambitious intellectual, he half-jokingly declared his motto to be "Wreak yourself upon the world!" A hulk of a fellow, he had a weakness for food, drink, smoke, and, especially, talk. Gruff yet self-deprecating, he relished contrariness; he was soft-hearted about hardheadedness, sentimental toward rigor and logic. His political enemies were the liberal intellectuals who came of age in the late 196os, yet he took to looking like one of them, cultivating a scraggly red beard and leaving untamed the frizz on his baking pate. Bork was a professor and judge, yet such professionals were the people he never ceased attacking. What Bork had written of antitrust law—that it was a paradox, a policy at war with itself could have served as the title of his self-portrait." Bork began life as a socialist, far left, who then morphed into the market-oriented conservative and philosophic libertarian; from one true believer position to another, although one friend later said that his early flirtation with liberalism was mostly to annoy his mother.

After absorbing conservative philosophy at the University of Chicago, Bork specialized in anti-trust law in a large firm where he distinguished himself early by battling against the Jewish quota. Chaffing though at the routines, and wanting to make a difference he eagerly accepted a professorship at Yale Law School, at the time, predominantly liberal, where he gloried in arguing conservative positions. Supporting Goldwater, he once said that "between the time he walked out of the house and arrived at his law school office, he held 15 impromptu debates and arrived in need of another shower. The man was in heaven." While there he also wrote an article that was to come back and haunt him. Personally supporting integration he opposed governmental coercion and so spoke out against the 1964 Civil Rights Act. It was logical libertarianism. The editors of The New Republic took the unusual step of replying to the article: "Government without principle ends in shipwreck; but government according to one single principle, to the exclusion of all others, ends in madness." The article brought him to the attention of conservatives who helped him along when they gained power, but phrases he used in it probably helped deny him a seat on the court. He later disavowed the content pretending it was simply an academic debate he had been having with Alexander Bickel. While he was certainly no racist, his views provided cover for everyone who was. This kind of academic jousting, so common in academia, unfortunately finds its way into Supreme Court deliberations. The court has currently been filled with just such academics.

As the left began to co-opt liberty and individual rights, Bork began moving inexorably to a more authoritarian view of government. As student revolts increased Bork saw that increased freedom was bringing barbarism.

"He lamented the decline of authority, the loss of interest in the ancients, the dangers of permissiveness. . . Slowly, as he felt the societal order face threat of decline, Bork ceased to be an iconoclast. He maintained his wit, but he lost his patience for good-humored intellectual jousting and became at times a testy advocate. . . .Bork wanted to fight the expansion of individual and minority rights because it was illegitimate; he opposed busing and affirmative action because they were intrusive regulation; he opposed homosexual rights and abortion because they were not in the Constitution.. . .he favored the death penalty and opposed expanding the rights of criminal defendants," and on and on

By the time of his nomination there were two competing views of judicial interpretation. Attorney General Meese and later the Reagan administration assumed that if only judges would read the text and look to the original meaning of the constitution, the result would inevitably be in their favor. Where is was not clear the judicial branch needed to defer to the legislative. On the other side was the so-called "sausage" theory that said it mattered less what went into the product as long as the result was good.

One interesting note in the campaign against Bork was the use of actualities. While perhaps not completely "fake" news, they were deceptive at best. Henry Griggs was a public relations consultant for AFSME, an organization that opposed Bork. He would send out numerous meticulously produced programs that gave the appearance of being actual news reports done by real reporters. Griggs did them all and smaller radio stations around the country, beset by falling revenues and budget cuts, would broadcast these announcements as if they were news done by their own reporters. AFSME had an anti-Bork agenda and so the content was always denigrating Bork by portraying him as being anti-civil rights, etc. They were very effective. The White House had a similar operation but Griggs was far better at getting placements throughout the country. The was an equivalent video operation that produce VNRs (video news releases) that were really just anti-Bork programs.

Ironically, following his withdrawal, Bork made a considerable fortune traveling around the country given speeches whose content validated the concerns of his opponents. The Douglas Ginsburg debacle followed resulting in the successful nomination of Anthony Kennedy who became more conciliatory and moderate while on the bench.

Bronner raises a warning flag. The use of half-truths in both the anti-Bork campaign and then again against Dukakis (Willie Horton) , when repeated often enough, become truth. Going "on the attack" has also become de rigeur in political discourse as it forces the opponent into constant defense.

Bronner cites the testimony of historian John Hope Franklin in his conclusion. Franklin and his family had been thrown off a train in Oklahoma when his mother, in 1922, had refused to move from a train's passenger car and into the baggage car where black's were forced to travel. In 1945, in North Carolina, he and other blacks were crammed into the baggage car while five whites had the passenger coach to themselves. The five were German prisoners of war and laughed at the idea blacks could have been fighting for such a country. When doing research at the Library of Congress years later he couldn't buy a cup of coffee in nearby restaurants.

He opposed Bork because: There is no indication in his writings, his teachings or his rulings that this nominee has any deeply held commitment to the eradication of the problem of race or even of its mitigation. One searches his record in vain to find a civil rights advance that he supported from its inception. The landmark cases I cited earlier have done much to make this a tolerable, tolerant land in which persons of African descent can live. I shudder to think how Judge Bork would have ruled in any of them had he served on the court at the time they were decided.

*https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1520&context=concomm… (altro)