If asking a nominee for federal office to state his religious beliefs, under oath, is not a religious test, what would one look like? The oafish Sen. Heflin would go on to vote against Judge Bork and to tell his credulous constituents he voted no because he thought the judge was “not a Christian.”
Of course, the real reason liberals were determined to bring down Judge Bork was because he had criticized the reasoning in Roe v. Wade (1973). That infamous ruling brought abortion-on-demand to America. The reasoning in Roe had been criticized by liberal Archibald Cox, former solicitor general under President Kennedy. It had been criticized by Justice Byron “Whizzer” White, a Kennedy appointee. It had even been criticized by John Hart Ely, a pro-abortion Ivy League law professor. Ely sharply criticized Roe “because it is not constitutional law and gives almost no sense of an obligation to try to be.”
It did not matter what anyone else had said. This was for keeps. Bork had to be brought down. And liberals were willing to do anything to achieve that end.
The heart of Roe is the constitutional right to privacy. That right, of course, is mentioned in the Fourth Amendment. No argument there. Liberals believed so strongly in “a right of privacy” that it can even encompass a lethal act that 50 state laws had limited or proscribed in their homicide codes.
So what did they do about Judge Bork’s right of privacy? They bribed local video store clerks to give them a list of Judge Bork’s rentals. They were searching for pornography. They found the judge had a penchant for Broadway musicals.
Perhaps the high point — or low point — of the borking occurred on September 17, 1987, the actual bicentennial of the Constitution. Sen. Kennedy grilled Judge Bork about his ruling in an interstate van line case. Kennedy thought Judge Bork had been insufficiently attuned to workplace safety.
Not a few observers noted the extreme irony. Ted Kennedy notoriously left a young woman in his car after driving off a bridge at Chappaquiddick in 1969. Fearing damage to his political career, he had failed to report the accident at a time when her life might still have been saved.
Soon after Judge Bork was beaten down, then-Chief Justice Rehnquist published a history of the U.S. Supreme Court. In it, Rehnquist emphasized the 1805 impeachment trial of Justice Samuel Chase.
Chase was a high Federalist who ran afoul of the triumphant Jeffersonians. Vice President Aaron Burr, soon to leave office, presided over the Senate trial. Burr had only recently killed Alexander Hamilton in a duel. But he ran the Chase trial with the elderly Supreme Court justice, a Maryland signer of the Declaration of Independence, in the dock like an accused criminal.
Rehnquist’s history lesson noted that a Federalist senator in 1805 urged his friends to hurry to Washington City: You are used to seeing criminals arraigned before the judge. If you come quickly, you can see the judge arraigned before the criminal.
Few readers who had lived through Ted Kennedy’s borking of an honorable judge and distinguished figure in the law missed the point of Chief Justice Rehnquist’s story.
Robert Bork passed away over the Christmas holidays. He was honored in death as he was in life by those who love their country, honor justice, and who remember what civility used to be.
Ken Blackwell is a senior fellow at the American Civil Rights Union and a member the ACRU Policy Board. He is a visiting professor at the Liberty University School of Law.