Slings and Arrows: Let’s Politicize the Court

Ronald Regan just hurled the ultimate accusation one politician can make against other politicians, saying that Judge Robert Bork’s political foes in the Senate have “politicized” the question. Actually, the Bork nomination was political from start to finish.

The surest sign comes from Democrats frantically urging the president to withdraw Bork’s name without a fight. Those Democrats dread a vote. Two months ago, the Democratic National Committee voted to withhold a national anti-Bork fund-raising letter on the ground that nixing Bork was (1) undoable, and (2) would hurt the party.

Yet White House strategy, directed by chief of staff Howard Baker, the consummate Capitol Hill insider, eschewed issues wherever possible. Consider his handling of a hard-hitting paper drafted by White House and Justice Department officials in mid-September.

“At 5 A.M. on June 10, 1973,” begins the article, written for the president’s byline, “Mrs. Joel Medgabow was awakened in her bedroom by the sounds of a burglar. To her horror, she found her husband sitting up . . . with a butcher knife he had just dislodged from his chest.”

The piece goes on to describe how the assailant, who proceeded to beat brutally Mrs. Medgabow, was caught, tried, and sentenced to death. Until, that is, an appeal threatened to undo the sentence. The Supreme Court had moved before to overturn the death penalty as cruel and often arbitrary. But this time, the solicitor general of the United States persuaded the court to let the verdict stand. That solicitor general was Robert Bork.

Alas, Baker and top aide Tom Griscomb hesitated to take what the White House revealingly calls the “low road,” namely, debating issues. So the paper stagnated through weeks of redrafting, bouncing between Griscomb’s communications shop and the Justice Department, until its belated release October 6.

At the same time, information from an internal Justice Department memorandum, setting forth examples of court-decisions to let criminals off on arguable technicalities of law, was given wide circulation on Capitol Hill. Yet the valuable research and examples taken from the memo, titled “Criminal Law: the Victim Be Damned,” was of course not available to Bork backers during televised hearings.

Officials who argued for an issue-based defense of Bork, notably Kenneth Cribb and William Bradford Reynolds, were not ignored by Baker or the president. In June, White House aide Dinesh D’Souza drafted a sophisticated strategy for moving the abortion debate ahead by conducting a study of the oft-overlooked medical risks of abortion to the mother, defunding of pro-abortion groups such as Planned Parenthood, and implementing other measures short of a total ban on abortion. Although the memo suggested delaying the measures until after the Bork hearings, Reagan decided to go ahead in July. “They’re going to say we’re against abortion anyway, and we are,” Reagan told Cribb, Baker, and others at a meeting on the D’Souza proposal. “We might as well be against it now,” and thus mobilize Bork supporters.

Yet this courageous stand was the exception. As recently as September 29, public affairs director Tom Gibson was still cranking out papers defensively responding to Bork’s critics on issues such as civil rights. “We’re not getting our issues across,” Cribb told Reagan. Yet even when a negative committee vote seem inevitable, Griscomb urged Bork to conduct an interview with TV’s Barbara Walters to show his “human side.”

Bork himself has strained in recent years under the pressure of knowing he might soon be nominated. In 1985 he allegedly turned down a male law clerk applicant to hire a less qualified woman. Three of Bork’s twenty -one clerks have been women, according to a congressional report; fearing unfair charges of discrimination someday, Bork felt, ironically, that “he had to run something of a quota system to get a woman or two,” a former clerk says.

In 1986, a group of Reaganite law students met at Stanford for a conference. At a spirited dinner, Justice Department aide Rocky Reese led a song on why “a few more justices have got to die,” adapted from a Broadway tune. Bork fidgeted nervously, then saw everyone else was having fun and smiled broadly. “I thought it was hilarious,” he later told one student.

Guilty posturing as a “mainstream” man, committed to “a jurisprudence of original intent,” will not win the day. Nor will Howard Baker’s understandable, but insufficient, Bork Barrel strategy, to give everyone his own nuclear power plant or army base if he votes yes.

Bork’s opponents, for all their plagiarism and partisanship, know that issues and communication are the soul of politics. They placed in the public mind concrete bad things they said might happen if Bork was approved: blacks and women put in the back of the bus, textbooks censored, and bedrooms denied their Fourth Amendment rights.

What might happen if more Reagan appointments are not approved? Murderers free on evidentiary technicalities, Charles Manson paroled, babies killed, pornography rampant. The evident Reagan-Baker decision to make this clear, to politicize an eminently political fight, may save Robert Bork yet.


  • Gregory A. Fossedal

    Gregory Fossedal (born 1959) is an American writer and political/economic theorist. At the time this article was published, he was a media fellow at the Hoover Institution.

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