Mr. Nice Guy
John Roberts is the anti-Bork -- and for Democrats, that’s just the problem
WHEN PRESIDENT BUSH announced his nomination of Judge G. John Roberts Jr. to the Supreme Court last week, Democrats groped for a reason to oppose him. The plain-vanilla, all-American judge - an accomplished lawyer, classically white-bread in looks, one-time high school football captain, reportedly possessed of “Midwest calm” - seemed, in the words of Senator Joe Lieberman of Connecticut “not [to be] one, as far as we know now, that has a record that in any sense can be described as extremist.”
Indeed, Roberts might best be seen as the polar opposite of Ronald Reagan’s famously “extremist” nominee for the high court, Robert Bork. Which is not a coincidence: Bork’s rejection by the Senate in 1987 - and the two decades of judicial jousting that preceded it–go a long way toward explaining why Roberts was tapped in the first place.
Contrary to much commentary from legal pundits, the Bork fight was not a new chapter in the history of the confirmation process. As far back as 1968, Senators threw off their former deference to the president and asserted their constitutional right to an active role. But Bork’s defeat - in which his liberal opponents ultimately succeeded in spinning their objections as something other than simple ideological differences - has nonetheless cast a shadow over subsequent nominations.
As strange as it seems in our era of hard-fought judicial confirmations, from the start of the 20th century until the late 1960s senators typically shrank from challenging a president’s judicial nominations. (The 19th century was full of such challenges.) Between Grover Cleveland’s administration in the 1890s and Lyndon Johnson’s, only one Supreme court nominee failed to win Senate approval (John J. Parker, in 1930).
But the activism of the court under Chief Justice Earl Warren changed all that. In setting the pace for social change - in racial equality and religious liberty, reproductive freedom and the rights of the accused - the Warren Court mobilized a fierce opposition from conservatives, especially in the South. They turned to their bastion of power, the Senate, to fight back. In 1968, when Lyndon Johnson picked Associate Justice Abe Fortas to succeed Warren as the chief, Republicans joined with Southern Democrats to kill the nomination by filibuster.
The Fortas battle was clearly a referendum on the Warren Court’s liberal jurisprudence. Yet most senators were reluctant to frame their opposition in openly ideological terms. They fastened instead onto other reasons - particularly Fortas’s receipt of a large, privately raised honorarium to run a brief university seminar–to argue against his elevation.
In 1969, when Richard Nixon became president - like George W. Bush, on a pledge to remake the court - liberals turned the tables. In ’69 and ’70, the Senate rejected in succession two Southern conservative nominees, Clement Haynsworth and G. Harrold Carswell. As conservatives had with Fortas, Democrats framed their objections in non-ideological terms. Haynsworth had as a judge ruled in cases where he had financial interests. Carswell had helped privatize a public golf course in order to escape an order to admit blacks.
This aversion to speaking plainly in confirmation fights had its roots in the founding fathers’ idea of the judiciary as insulated from political pressures. But over time that apolitical status was inflated, in the popular imagination, into a naive conception of the justices as removed from everyday politics.
One reason for this change was the rise in the 20th century of professionalism - the notion that practitioners of a discipline such as law claim a special expertise that enables them to solve problems the public cannot. To introduce into judicial confirmation battles such coarse considerations as a prospective justice’s political views hence became taboo. As a result, critics of nominees built their public cases on such extra-ideological factors as the candidate’s alleged harassment of minority voters (William Rehnquist) or marijuana use (Douglas Ginsburg) or sexual harassment (Clarence Thomas). The Thomas case was a perfect illustration of the rhetorical dodge: Although most Democrats opposed Thomas for his right-wing views, their resistance had no traction until Anita Hill’s harassment charges surfaced.
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The nomination fight in which ideology most overtly entered the picture was Bork’s. But even then his critics couldn’t see their way clear to declaring flatly that his appointment - to replace the retiring Lewis F. Powell, the swing vote at the time - would make the court unacceptably conservative. Using a subtle but meaningful distinction, Democrats stressed not that Bork was right-wing but that he was “extreme,” possessed of such outlandish views that they didn’t even belong to a respectable conservative tradition. He was “out of the mainstream.”
The language of extremism let Bork’s foes deflect charges that they were applying interest group-driven litmus tests, or politicizing a previously pristine process. Indeed, the Senate Judiciary Committee report calling for Bork’s rejection rendered him a breed apart. “Not one of the 105 past and present justices of the Supreme Court,” it read, “has ever taken a view of liberty as narrow as that of Judge Bork.” It pointedly distinguished him from “such great judicial conservatives” as John Harlan, Felix Frankfurter, Hugo Black, Potter Stewart, and Powell himself.
The extremism charge directed attention not simply to Bork’s opinions but to his manner and temperament. Bork’s long paper trail, full of dogmatic positions, made him seem more attached to cherished legal principles than to the real world of people’s problems. Completing this image was Bork’s eccentric behavior and unkempt appearance, especially his mangy beard, which made him seem slightly demonic - or at least too detached from reality to bother with personal grooming. During the hearings Alabama Senator Howell Heflin even raised questions about Bork’s beard, his attire, and “the way he wears his hair.” Sighed a White House aide: “The beard doesn’t help him. He looks like the radical some paint him to be.”
A majority of senators concluded that this oddball with the gruff hauteur in his voice and the half-cocked glint in his eye shouldn’t be making decisions affecting millions. And yet, for all the talk of extremism, a few observers did recognize the central question. “The issue is not whether Robert Bork is a brilliant lawyer and judge, which he is, nor even whether his views are extreme, which they are,” former Johnson White House aide Joseph Califano insisted in an op-ed piece. “The issue is simply what his views are.” Of course, had Bork’s critics framed their objections as just a matter of how he would rule on abortion and other issues, they probably would not have managed, in the end, to Bork him.
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Since 1987, liberal groups devoted to stopping the judiciary’s rightward march have played the extremism card in nomination fights when no racist or sexist behavior or financial chicanery could be found. Had Bush picked a documented right-winger like appellate judges Michael Luttig or Michael McConnell to replace O’Connor, they surely would have played it again.
But the White House outfoxed the left with the choice of Roberts. Without a Bork-like trail of articles and opinions, any evidence of “extremism” will be harder to unearth. And in his personality Roberts seems, at first blush, to resemble the sedate Anthony Kennedy more than the invective-slinging Antonin Scalia - even though this aspect of Roberts’s demeanor may have nothing to do with how he’ll judge cases.
In choosing a candidate who appears to be as far to the right politically as possible without setting off the extremism trip-wire, the White House seems to have found a way out of the Bork trap. Ironically, Robert Bork’s legacy may be that in failing to win confirmation to the high court, he wound up showing the way toward making it the very bastion of conservatism his supporters always prayed it would become.
David Greenberg is a professor of journalism, media studies, and history at Rutgers University and the author of "Nixon's Shadow: The History of an Image." 