Biden vs. Bork, 1988: Democrats Smear a SCOTUS Nominee

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Editor’s note: this article originally appeared in the May 1988 print edition of Crisis. It has been edited for brevity.

Many people have asked me what it was like to live through the nomination and hearings of my husband, Robert 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 John 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 [Edward M.] 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.

I remember sitting behind Bob at the hearings in September with 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 Joe 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 Ted 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.

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.

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 him 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 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.

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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