Robert Bork is dead, and that is, as Martha Stewart would say, a good thing.
The first thing that most of us learned of Robert Bork was in 1973, when as Solicitor General he cooperated with Richard Nixon's efforts at obstruction of justice by firing Special Prosecutor Archibald Cox, a date that will live in infamy as the Saturday Night Massacre. The Massacre was Nixon's attempt to prevent Cox, whom he had appointed special prosecutor to investigate the Watergate and other Nixon administration crimes, from gaining access to the tapes Nixon had secretly made of conversations in the White House. When Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus both refused to fire Cox on Nixon's orders, and resigned instead, Bork was only too willing to do the deed.
Fortunately, the effort was unsuccessful, Nixon's tapes were eventually unearthed, the firing of Cox was ruled to have been illegal, and Nixon finally made it out of town just ahead of the impeachment. Bork's effort to help Nixon with the coverup had failed.
This episode alone would have been enough to mark Bork as one of the greatest political criminals of our time.
Fast forward almost fifteen years. Ronald Reagan is president and one of his less-remembered programs was his campaign to reverse the gains made by the Civil Rights Movement. Not only did he launch his campaign in Philadelphia, Mississippi, famous primarily for the murders of three civil rights workers, but his presidency was marked by support for the apartheid regime in South Africa, support for racist policies at Bob Jones “University”, and racist attacks on welfare recipients.
For such a president Bork was the ideal candidate. With his academic and judicial credentials and his policy preferences that the federal government had no business trying to prevent private businesses from discriminating against black people or trying to prevent the Southern state and local governments from thwarting black people's right to vote, and that the Equal Protection Clause should never have been read to apply to women, he was everything Reagan wanted.
The first time I met our senior Senator, and now the senior member of the U.S. Senate, was with a group of activists urging Senator Leahy to oppose Bork . He generously gave us his time, probably an hour or more, and I left feeling confident that Senator Leahy would do everything he could to block Bork's confirmation. He didn't fail us.
The hero of this episode, though, was Senator Ted Kennedy, and I will reproduce in full his speech on why Bork would be such a blight on the Supreme Court.
Mr. President, I oppose the nomination of Robert Bork to the Supreme Court, and I urge the Senate to reject it.
In the Watergate scandal of 1973, two distinguished Republicans — Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus — put integrity and the Constitution ahead of loyalty to a corrupt President. They refused to do Richard Nixon's dirty work, and they refused to obey his order to fire Special Prosecutor Archibald Cox. The deed devolved on Solicitor General Robert Bork, who executed the unconscionable assignment that has become one of the darkest chapters for the rule of law in American history.
That act — later ruled illegal by a Federal court — is sufficient, by itself, to disqualify Mr. Bork from this new position to which he has been nominated. The man who fired Archibald Cox does not deserve to sit on the Supreme Court of the United States.
Mr. Bork should also be rejected by the Senate because he stands for an extremist view of the Constitution and the role of the Supreme Court that would have placed him outside the mainstream of American constitutional jurisprudence in the 1960s, let alone the 1980s. He opposed the Public Accommodations Civil Rights Act of 1964. He opposed the one-man one-vote decision of the Supreme Court the same year. He has said that the First Amendment applies only to political speech, not literature or works of art or scientific expression.
Under the twin pressures of academic rejection and the prospect of Senate rejection, Mr. Bork subsequently retracted the most neanderthal of these views on civil rights and the first amendment. But his mind-set is no less ominous today.
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, schoolchildren could not be taught about evolution, writers and artists would 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 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 tip 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. President Reagan is still our President. But 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 on the next generation of Americans. No justice would be better than this injustice.
The United States was spared the injuries that would have inevitably flowed from the confirmation of Robert Bork to the Supreme Court, but we were not spared years of his bitter, hectoring screeds against the country that rejected him.
Conservatives love to show the bloody shirt of the Bork nomination, and they even invented a word, “borking”, to describe their view of his treatment in the confirmation process. The fact is, though, that Bork was rejected not because his positions were distorted, but because they were revealed. As far as we have to go as a country, in 1987 it was clear that Bork's extremist conservative ideology was far too far out of the American mainstream to survive the public scrutiny he received.
When Bork's confirmation failed Reagan's next choice was a very conservative but less well-known Anthony Kennedy, who evolved into a principled swing vote on the Court. We can all be glad that in the last twenty-five years that seat has been occupied by Kennedy and not by Bork.