An Ordeal to Remember: The Attack on My Husband, Robert H. Bork

Many people any people have asked me what it was like to live through the nomination and hearings of my husband, Bob Bork. I usually answer that it was like being besieged in a battle where the reinforcements were not informed there was a war. It was a traumatic and exhausting experience of unwarranted vilification. A few months have passed, time for rest and reflection, and my focus is clearer on what really happened.

I saw the workings of government close up in an intense political situation dominated by the political and religious left. The campaign against my husband, now openly denied by the left, was unprecedented against a nominee for the Supreme Court. “Trashing a man in our house,” Senator Danforth called it. I think such a campaign of dirty tricks and disinformation is immoral and unfitting for elected representatives of the people. Understandably, many senators do not want to talk about it. They are not proud of what they did, although some perhaps feel it was justified, what W.H. Auden called the “necessary murder.”

Yet, remembering the vicious campaign of lies against Bob, one has to ask: what provoked such an unleashing of energy from civil rights groups and their affiliates? Why such a frenzy of hatred and indignation? I doubt what the left engineered will be quickly forgotten. In fact, I have seen ways in which this event has turned out to be a political education for many who are now awakened for the first time to the importance of the Supreme Court and the question of how to interpret the Constitution.

It all started on July 1, 1987 when President Reagan announced the nomination from the White House. I knew of it 24 hours before and was thrilled for Bob to have this opportunity to sit on the highest Court in the country. The family’s initial delight and excitement over this great honor was muted by the discordant note sounded by Senator Kennedy’s statement from the Senate floor. With particularly vicious and insulting words, riddled with outright falsehoods, this elected representative from the state of Massachusetts announced the theme of the campaign against Bob. In that first outburst, he inaugurated some of the slogans the opposition would repeat again and again.

Apparently as part of an effective Southern strategy, Kennedy personally called Southern black religious leadership in July and August to mobilize the anti-Bork campaign among the special interest and civil rights groups. Black leadership spread the anti-Bork message throughout the southern states’ putting pressure on the their senators, many of whom were considered swing votes. The Judiciary Committee put off the opening of the hearings for 77 days, giving the groups ample time to organize.

I remember sitting behind Bob at the hearings in September with Robert, Jr., Charles, and Ellen, his three children, and thinking something was wrong. The setting in the Senate Caucus room with bright lights, hundreds of photographers, milling crowds, and live cameras seemed surrealistic. Judge Bork was prepared to discuss his judicial philosophy in view of the fact that he had written so much, but very soon a different agenda began to emerge. Beginning with Senator Biden, the Democratic senators all declared how fairly the nominee would be treated, and yet one by one they distorted his positions, making statements which coordinated perfectly with the positions taken by the special interest groups in their newspaper ads and interviews. Senator Kennedy accused Judge Bork of breaking the law during the Saturday Night massacre, a lie; Senator Metzenbaum called him a man who favored sterilization implying that he was a sexist, a lie; Senator Heflin said the Constitution allowed no religion test for public office, but after the hearings proceeded to portray my husband as a man without religion, who could not be trusted, a lie.

Bob answered his questioners with equanimity and poise, often repeating his answers because many of the senators would listen to him and then repeat their original distortions. The manipulation of the situation by the Democrats became more apparent with each day. By the end of Bob’s hearings we realized we were participating in a charade, not a real exchange. We returned home every evening to TV camera crews on the front lawn, piles of mail, and continuous phone calls from all over the country to reassure us of the support that was, during the sessions, invisible to us except from the Republican members of the Judiciary Committee. I knew by September 19, when Bob’s part of the hearings ended, that my life would be changed by this experience.

Bob and I have been married for five-and-a-half years. He has a most agreeable spirit, a delicious wit, and a love of good conversation. His flair with words prompted me about three years ago to suggest I follow him around with a notebook to record his great lines. Chesterton referred to marriage as a seesaw. Bob calls marriage a “system for allocating blame.” We have a happy marriage in which we share everything — joys, sorrows, and responsibility.

At a recent dinner in answer to a question Bob showed his ready wit. He described the Democrats’ version of the debate over his nomination as their accusing him of wanting to sterilize the American people — and follow them into their bedrooms anyway. During a question and answer session in New York, a man, obviously distressed at what had happened to Bob, asked, with feeling, why he seemed so calm, why he wasn’t more angry with those who opposed him. Bob looked at him, paused, and said, “It must be a character flaw.”

Bob’s three children patiently endured the attacks on their father and showed remarkable strength. Bob, Jr. the oldest, a friendly and gregarious journalist, and Charles, a quiet and introspective journalist and photographer, were helpful discussing turns of events with their father. Ellen, the youngest, a vivacious and bright follower of Central American politics, was fervent in her support and encouragement. Even Bob’s mother at 89 years of age followed the hearings closely.

A revealing incident was Bob’s decision to remain in the nomination process after the hearings. Many friends advised him to withdraw saying he had suffered enough, there was nothing to be gained by his staying in. Both of us were fatigued by events and tried to weigh what was the best course.

The day of the decision Bob, Bob, Jr., Charles, and I were at the chambers. Bob decided to make some telephone calls so we three went across the hall to have lunch. We discussed our thoughts about what he should do and discovered for the first time that we all agreed he should not withdraw. I sensed the moment had come to tell Bob our position. We went back to the chambers. Bob had just hung up the phone. We told him our position. We knew he did not have the votes to win but thought the Republicans would have more time to set the record straight. Also all the senators would have to go on the record, which was the last thing a number of them wanted to do. Bob was visibly moved, and he said he agreed with us. So did Senator Simpson with whom he had just talked. As soon as the decision was made we knew it was the right one. A peace settled on us as Bob gathered his papers to go home and write his “staying in” statement.

Now Bob, Jr. is a Journalism Fellow at the Heritage Foundation in Washington and also freelancing. Charles works at National Review designing the magazine’s covers and is also writing about his recent trip to Pakistan. Ellen is a spokesperson for the press office of the U.S. Department of State.

Bob and I have the kind of relationship in which we discuss everything. I have travelled with him when he has given speeches and have enjoyed getting to know the legal world since I am not a lawyer. The nomination was no different. We went through it together reflecting on it, encouraging one another and caring for one another. I mention this because I think this event brought out the best in both of us. When a man of outstanding integrity and character is subjected to such an immoral national campaign he either exercises virtue under pressure or he does not. Bob’s example to the family of courage and freedom of spirit, which allowed him to act admirably under intense pressure, was remarkable. We were all strengthened by his example and we all drew together in support of him and what he stood for. When the vote was taken and the furor subsided we felt anger at the way he had been treated and a sense of loss that this opportunity to serve the country was denied him.

The greatest source of strength for me was my faith in God. I trusted that God allowed this event in our lives and strengthened us to do His work. Many mornings we prayed the psalms, some of which dramatically describe confrontations with the enemy. Some lines were particularly striking as we heard the newsmen gathering out on the lawn. “O Lord, how many are my foes! Many are rising against me.” (Ps. 3:1) “O men, how long shall my honor suffer shame? How long will you love vain words, and seek after lies?” (Ps. 4:2) The psalms expressed the longings and desire to do God’s will that I felt in the midst of an unforseen situation. Prayer helped me to remain firm and patient and to rise above conflicting emotions. With all the turmoil and stress of those days I still experienced a peace and inner freedom that came from trying to do the truth. Jesus’ promise, “The truth will make you free” (John 8:32), has new meaning for me.

Many supporters from all over the country called or wrote to pray with us and for us. A group I belong to that discusses spiritual classics supported us with notes and calls of encouragement. After the hearings, we learned of many prayer groups who kept 24-hour vigils during Bob’s days of testimony.

The most difficult aspects for me were, first, listening to the deliberate lies spoken by senators, written in anti-Bork ads, announced on the evening news; and second, observing the lack of powerful support and effective strategy by the White House. Amazingly, the White House strategists seemed at first unaware and then bewildered by the campaign against its nominee. They let an enormous amount of time elapse, doing absolutely nothing, vacationing in fact. Meanwhile, the opposition mobilized.

When the White House finally fought back, it was too late. Here was my husband in the impossible position of being a sitting judge nominated to the highest Court facing a well ginned up political campaign against him, unable to speak in his own defense except at the hearings, while the White House used none of its resources outside of the usual preparation for the hearings on behalf of the nominee. I don’t understand such ineptness from people whose great strength is supposed to be, not principle, but “pragmatism.” To paraphrase Chesterton, my problem with this sort of “pragmatism” is that it never seems to work. In effect what happened was an uncontested political victory by the left against the Reagan administration.

After discussion our family decided to adapt Bob’s position of restraint so as not to further debase what was already out of hand. We said little to the press and gave no interviews, except one which Robert, Jr. gave on ABC. He also wrote an op-ed piece on the horrible caricature of his father that the anti-Bork campaign spawned.

The political circumstances surrounding the nomination were difficult but I think success would have been possible because my husband’s positions are held by the majority of Americans. The Democratic controlled Senate had finished the Iran-contra hearings when a weakened president announced the nomination. A lame duck president put forward his strongest nominee, a man with impeccable personal and legal credentials. Ralph Neas, director of the Leadership Conference on Civil Rights, a coalition of civil rights groups, and People for the American Way vowed to fight it. Labor unions as well as religious leaders organized meetings in which Judge Bork was on their agenda. Kate Michelman of the Abortion Rights Action League threatened a frontal assault such as had never been seen. Civil rights groups scared blacks with the picture of a monster who hated them and would take away their civil rights gains and who therefore had to be defeated. What called forth all this energy? Essentially, a symbol. Bob was a clear symbol of all that the liberals hated. He represented to them the end of the Warren Court. His writings were a refutation of some of their most cherished positions, especially the right to abortion-on-demand and the idea of a Constitution “evolving” in an increasingly liberal direction. But instead of engaging in intellectual debate the Democratic senators and the civil rights groups did everything they could to distort his record. They succeeded in creating a monstrous caricature of him, one radically unfamiliar to those of us who know him and are in a position to understand what he is really like.

From a legal point of view what should have happened in the hearings did not. The hearings should have been a searching, but non-ideological review of the qualifications of the president’s choice. But, in a manner of speaking, they never got off the ground. With Bob’s wide experience, many looked forward to a fascinating discussion of the role of the Supreme Court and a discussion of interpretation of the Constitution. The Democratic Senators, with the help of some leftist legal scholars, including Laurence Tribe and Philip Kurland, prepared questions.

From the first day the senators’ line of questioning showed that they were interested in one thing — calumny. They took Bob’s articles and criticisms of some Supreme Court decisions and twisted them into positions he had never taken, such as favoring poll taxes.

Senator Heflin accused him of a confirmation conversion because Heflin could not distinguish between the work of a professor and that of a judge. A professor is supposed to criticize and examine reasoning in cases; a judge interprets the law as it applies in specific cases. Heflin made it look as if Judge Bork was changing his mind about positions taken in the past in order to gain favor. I found the accusations and distortions coming from all of the Democrats offensive, insulting, and totally dishonest.

Not only did the Democrats not want a fair discussion of constitutional issues, they wanted to discredit certain positions and ostracize them from legal and political discourse. Bob’s originalist position on interpretation of the Constitution was mentioned only to be discounted. One of the themes of the campaign against was that he was “out of the mainstream.” The fact is, he stands very much in the mainstream with James Madison, John Marshall, Felix Frankfurter and others. The truth is the left wants to create the idea of a new mainstream: the Warren Court era decisions. Anyone who criticizes them is an extremist in their eyes. Privacy and abortion decisions should be made by the courts, not by the people through elected representatives.

Bob’s position, that the legislature should decide questions that affect public morality and the body politic, not the courts, was not one that the liberal senators readily agreed with. I think it is ironic that senators who are elected to make laws do not want to make laws. They much prefer to have unelected judges make laws because it is the only way the liberals can foist their agenda on the American people. This situation presents a threat to democracy as we know it in this country. It is a hidden threat because it is not widely understood or readily discovered by the general public. The system we now have with an independent judiciary and separation of the three powers of government, executive, legislative, and judicial, will be dramatically altered if this trend of politicizing the courts continues and judges refuse to exercise judicial restraint and instead engage in a process of making up rights. Americans will be deprived of one of their most basic rights, the right of self-government. We will instead have unelected, unaccountable judges making laws instead of interpreting them and the people will have no recourse for change.

Let me turn for a moment to the question of ethics: was politicizing the nomination process right? We now hear that Bob is just complaining. Some have called what happened a lynching, a war, the “frankensteining of Judge Bork,” the “Jim Crowing of Judge Bork.” The senators excuse themselves by saying, “It was nothing personal,” and the press continually reports that Judge Bork is giving “angry” speeches, implying he should just accept the actions done against him. This tactic of trivializing the ethical dimension of Bob’s rejection by the Senate is part of the left’s tactic of denial that any wrong was done. But I also believe that history will vindicate my husband.

I was too close to the process to be able to ignore the operative ethical standard of Judiciary Committee and the Senate. The opposition wanted one result, Bob’s head on a platter. This campaign to assassinate the character of a man of integrity for the sake of gaining the end of his rejection was wrong. Senator Danforth’s (R-MO) words in his dramatic floor speech three hours before the vote on October 23 console me:

And I have talked to Members of the Senate who have already announced that they are going to vote against Judge Bork and they are sheepish about it. I say to them, “What has happened to this man just is not right.” And they nod, and a little smile comes over their face, a sheepish smile, and they say, “I know, I know.”

It is wrong. And, Mr. President, we are responsible here in the Senate. The man has been trashed in our house. Some of us helped generate the trashing. Others of us yielded to it. But all of us, myself included, all of us have been accomplices to it. All of us who have not spoken out have been accomplices to it. All of us who have sat there, not just members of the subcommittee, but Members of the Senate, and let these ads go on and let this trashing go on and let this good man be characterized as some sort of a Frankenstein’s monster without raising a voice against it, all of us are accomplices.

I think Senator Danforth is right. This was a televised national forum and many senators lacked the will to disassociate themselves from a campaign of lies and speak out against it until too late. For me it was disheartening to realize how little moral fiber some of our political leaders have.

We were fortunate to have the inner spiritual resources to not be crushed by this ordeal. What made this particularly distasteful was the Senators’ participation in outright demonstrable lies. I think there is moral bankruptcy in a position that has to use lies as a means to its end. The opposition concluded Bob was insensitive to the needs of the American people, and of interest groups in particular. “Sensitivity” is a cherished virtue of the left, especially when it concerns the groups they favor. The charge of insensitivity was used against Bob as both character assassination and a diversion tactic, a smokescreen, to get out of a discussion of the intellectual foundation of their position and agenda. Actually, the appropriate and traditional expectation of the public is for a judge to be impartial and intelligent for an honest application of the law.

I cannot pass by without mentioning the coverage by the media. It became apparent early in the hearings that the fourth estate for the most part took up the position of the anti-Bork campaign although now some media personalities deny that there was any campaign against him. The New York Times and the Washington Post repeated the slogans which were the concerns of the opposition. Robert Lichter of the Center for Media and Public Affairs found that 63 percent of all the 232 media stories were negative. Civil rights and women’s rights dominated the coverage while Bob’s judicial record did not. Some reporters claimed that Bob was his own worst enemy. This turned out to be the perfect cover for all the lying—blame it on him.

On a personal note several things have changed in our lives. We came through this experience stronger than we were before. Bob resigned from the Court of Appeals for the District of Columbia Circuit in order to engage more freely in the battle of ideas over who should control the courts. After recovering from a certain physical fatigue, we have adjusted to a new life of writing, speaking, and lawyering. We were flooded with support mail from all over the country after the hearings and after the Bob’s decision to not withdraw. In fact, we still receive some. I marvel that so many people did not believe the caricature they saw on TV. He can no longer walk through airports or railroad stations or into restaurants without being recognized and giving autographs.

We hope that what happened to us will become a symbol, and a kind of learning experience, for those who want to understand the struggle in the legal culture between radical liberalism and traditional values. There are very important issues at stake that ultimately affect the future of our democracy. We are both going to write more about them and dedicate ourselves to articulate and defend ideas upon which this country and its Constitution were founded. This is what Bob does best and I am lucky to have such a friend and teacher.

Mary Ellen Bork

By

Mary Ellen Bork is a freelance writer and lecturer on issues affecting Catholic life and culture. She serves on the Advisory Board of the School of Philosophy, Catholic University of America, and Christendom College. She is on the Susan B. Anthony List, and the Chesterton Review. For several years she has facilitated groups studying Pope John Paul II’s theology of the body. She is doing research on Catholic leaders during the English Reformation and sixteenth century Catholic religious leaders. Her articles appear in the National Catholic Register, The Washington Times, Voices, and The New Criterion.

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