John Roberts as the Anti-Robert Bork: How Roberts's Nomination, and Conservatives' Senate Hearings Strategies, Reflect Lessons Learned from the Bork Debacle

By EDWARD LAZARUS
Friday, Aug. 05, 2005

The more I think about the potential confirmation fight over John Roberts, the more I am transported back to the 1987 confirmation hearing for Robert Bork. Bork, of course, was President Reagan's first and unsuccessful choice to replace Justice Lewis Powell, who at that time held the swing vote on an increasingly conservative Supreme Court.

The Bork hearings were a watershed event. They brought into public view the intense civil war in our legal culture - a war that rages to this day. They injected the truth-bending techniques of electioneering and interest group politics into the process for nominating and confirming judges. Most of all, they taught both sides that, when it comes to filling a seat on the Supreme Court - a seat the Justice is likely to occupy for 20, 30 years, or even 40 years, winning is everything and the ends justify the means.

All this is playing out again in the run-up to the Roberts hearings, as both sides try to apply the lessons of the Bork experience in shaping their current strategies.

What Conservatives Learned from the Bork Hearings

For nearly twenty years, conservatives have been asking themselves, how did Bork get defeated? After all, Bork was terrifically smart and had the best legal resume of anyone not yet on the Supreme Court. He'd been a professor at Yale Law School, a top official in the Justice Department, a highly acclaimed author of influential articles and books, and a leading judge on the U.S. Court of Appeals for the D.C. Circuit - the nation's second most prestigious court.

Some of these strengths, however, turned out to be confirmation weaknesses. Bork may have been a terrific academic, but the result was a long track record of taking sides on controversial legal issues. This record, as well as his many judicial opinions, gave Bork's opponents lots of targets to shoot at, as well as positions to caricature.

Being an academic and having an overarching judicial philosophy compounded Bork's problems. In particular, Bork's professed devotion to the jurisprudence of "original intent" gave his foes a chance to dream up lots of tough questions that Bork could answer only in one of two ways: by abandoning his allegiance to original intent, or by sticking with original intent and expressing politically unpalatable views. Either way, the foes won: Bork could be painted either a hypocrite, or a monster.

Consider, for example, Brown v. Board of Education, perhaps the only true sacred cow among Supreme Court opinions of the modern era. Brown is very difficult, if not impossible, to defend on the basis of the intent of the framers of the Fourteenth Amendment's equal protection clause. (As one example of the difficulty, the same Congress that drafted this Amendment funded a segregated school system in the District of Columbia.) But Bork could never disavow Brown - and so his opponents had a field day tying him in intellectual knots.

Bork also had more mundane problems. On television, he came across as smug and contemptuous - in a word, injudicious - though in real life, he could be quite charming. As things turned sour for him, he simply could not muster the kind of charisma and humor that might have disarmed his opponents, rallied public support, and seen him through the rough patches.

Conservatives' Game Plan for Roberts: Make Sure He Comes Across as the Opposite of Bork

But Roberts has charisma and humor to burn. And in that respect - as well as the others mentioned above, President Bush -- and Roberts himself -- are sticking closely to an "opposite of Bork" game plan.

On a personal level, the image Roberts projects could not be more different from Bork's. On the crassest level, Roberts is telegenic and soft-spoken, whereas Bork was neither.

But the dissimilarity also runs much deeper. Roberts's writings as a young Turk in the Reagan Justice Department suggest that, at least at one time, he was a hard-edged "movement" conservative. But unlike with Bork, Roberts's rough edges seem to have been smoothed away: He now projects the image of a modest and thoughtful legal craftsman who, despite strong conservative convictions, is the kind of collegial and open-minded conservative with whom liberals can have a meaningful dialogue.

Roberts is doing everything possible to reinforce this impression. In answering the Senate questionnaire about his views, Roberts went out of his way to emphasize the modesty and humility with which he approaches the task of judging, and the deep respect he has for the views of his colleagues and predecessors on the High Court.

A cynic might say you needed some tall waders to get through some of Roberts's answers, but in the "not Bork" playbook, the appearance of arrogance is a potentially fatal flaw. Roberts is avoiding this assiduously.

Similarly, Roberts is not burdened by a Bork-like record of speaking out in his own voice on controversial issues. Roberts certainly shares Bork's level of accomplishment, but Roberts's accomplishments (unlike Bork's) are of a kind that have allowed him to avoid taking a lot of public positions on his own behalf. In particular, because Roberts was never an academic and only briefly a judge, he has spent most of his illustrious career taking positions as a lawyer for others, rather than taking positions for himself.

The nature of Roberts's career gives him a double layer of protection. To begin with, he can deflect criticism of the legal positions he advocated (such as calling for the overruling of Roe v. Wade while in the first Bush Administration) on the ground that he was acting merely as a lawyer advancing his clients' views, rather than his own.

In addition, Roberts and the Administration can resist efforts to discern his views through the release of internal memoranda, by invoking the attorney-client privilege: Since the government was the client, and the privilege belongs to the client - it is the client's to assert or waive -- the Administration has decided to take the heat for its assertion of the privilege, and its refusal to disclose the documents. In theory, Roberts, as the attorney, has no power here: The privilege doesn't belong to him, after all. But in reality, Roberts is probably delighted that the Administration has intervened to save him from pointed Senate questions about particular memoranda he wrote in his supposedly more hard-core-conservative youth.

When Bork was nominated, the Reagan White House compromised on the issue of what would be disclosed. In contrast, the Bush White House is already making clear that here, too, the strategy will be "reverse-Bork." It will take the heat so Roberts's doesn't have to.

Finally, Roberts presents a sharp contrast to Bork in judicial philosophy. Roberts is already on record strongly disclaiming an allegiance to any particular theory of constitutional interpretation, such as original intent jurisprudence. Roberts says that he picks and chooses what interpretive tools to use (such as textual analysis, historical analysis, or reliance on precedent) depending on which tools seem best to fit a particular case.

This approach has the twin benefits of sounding exceptionally reasonable, and of giving Roberts plenty of wriggle room to avoid the traps that were laid for Bork.

What Liberals Learned from the Bork Hearings - and May Use to Oppose Roberts

Liberals, of course, have also derived their own lessons from Bork, but they are largely in a reactive mode.

Liberals' first priority is to amass a lot more hard information about what Roberts actually thinks. Without more to go on, it will be well-nigh impossible to mount a serious opposition, even though most liberals suspect that Roberts will prove to be both extremely conservative and potentially very influential if confirmed.

Why could Roberts be influential? Because of the very collegiality that is cited as a reason to confirm him.

Justice Thomas, for instance, is isolated on the Court by his extreme and often unusual views; like Bork, he too is susceptible to caricature due to a strong emphasis on Framers' intent. So while Thomas is a reliable conservative vote, he is not an effective wooer of moderates. But Roberts could both be a reliable conservative vote, and also convince moderates such as Justice Kennedy to join his side. Similarly, while Thomas is too extreme to ever be a Chief Justice candidate, Roberts, in contrast, could easily become one.

Putting politics aside, the current Court member Roberts most resembles is Stephen Breyer. Roberts is far more intellectual than Rehnquist, far more politic than Scalia, and - as noted above - far less extreme than Thomas

Like Breyer - who successfully helmed a First Circuit than was more conservative than he, and forged a moderate set of Sentencing Guidelines (one that did not take on the death penalty) -- Roberts may have influence far beyond his actual vote.

From the look of it, liberals also have decided, as in the Bork hearings, that their only real chance for defeating Roberts is to paint him as an enemy of the constitutional right to privacy on which Roe v. Wade depends.

As I have argued many times, including in an earlier column for this site, this means that Senate Democrats will be seeking to defeat Roberts on very weak legal grounds. Having serious doubts about the legal underpinnings for Roe v. Wade is respectable and responsible, not extreme or bizarre. Partisan liberals may consider Roe a sacred cow, but constitutional scholars simply do not. Senate Republicans may even point to liberal and moderate critiques of Roe if Roberts answers equivocally about - or, more likely, refuses to discuss - the decision.

In the end, then the Democrats will be waging their fight on political, not legal, grounds -- that is, based not on the soundness of their own jurisprudence, but on the polls, which say that roughly 70% of Americans support a woman's right to choose.

Simply put, federal power, race-based remedies, and other issues may be equally important issues, but only the right to privacy - and, specifically, a woman's right to opt for abortion in the first two trimesters of pregnancy -- holds the potential to derail a nominee.

The Roberts Hearings: Probably Unenlightening, and One-Note

The upshot of all this is that we are pretty unlikely to reap one genuine benefit of the Bork hearings: The questions and answers between the Senators and Bork treated the nation to an open and wide-ranging debate about the meaning of our Constitution and the role of judges in interpreting it.

Thanks to Bork's entrenched views and his unusually frank responses, the public got an extraordinary education about the divisions in our legal and political culture -- regarding not just the issue of privacy, but also those relating to race, states' rights, religion, free speech and others.

There is, sadly, little risk of such enlightenment this time around. Most likely, Roberts will be as bland and reasonable as possible, while the liberals push and probe, but end up with insufficient information to penetrate Roberts's attractive veneer. In short, it will be all about "not-Bork."


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.