Washington Lawyer

Legends in the Law: Robert H. Bork

(Appeared in Bar Report, December/January 1998)

Robert H. Bork has served as solicitor general and acting attorney general of the United States and as a judge on the U.S. Court of Appeals for the D.C. Circuit. He is the author of two best-selling books, The Tempting of America: The Political Seduction of the Law and Slouching Towards Gomorrah. He is currently the John M. Olin Scholar in Legal Studies at the American Enterprise Institute.

Bar Report: Have you always considered yourself a conservative?
Robert H. Bork: No. I was quite radical when I was young. At the age of fifteen or so, I read a book titled The Coming Struggle for Power that made a big impression on me. After reading it, I became a socialist. My family lived in a small suburb of Pittsburgh, where I don’t think there were anything but Republican votes. In a milieu like that it was something of a scandal when I began announcing that I was a socialist.

BR: Was your father a conservative?
RHB: He was conservative by temperament. He voted for Franklin Roosevelt’s opponents. He also had a liberal streak. He was, for example, sympathetic to labor unions in conflict with management. But I don’t think my father’s views had much influence on me. He worked for a large steel company and was pretty much occupied with his job. On the other hand, my mother and I used to sit up and argue late into the night about anything and everything. Long about midnight my father would come to the top of the stairs and shout down, "It’s time to come to bed. This is not a debating society." But that’s exactly what it was—my mother and I had our own debating society.

BR: As a high school student, were you thinking about eventually pursuing a career in the law?
RHB: No. I graduated from secondary school at the age of seventeen. World War II was going on and I wanted to enlist right away, but my parents didn’t want me going off to the war at that age. So I enrolled at the University of Pittsburgh for two semesters in 1944-45. Mostly I did a lot of partying. I wasn’t seen in class too often, and I didn’t pay much attention. Before I turned eighteen I enlisted in the Marines. I guess I was to be part of the invasion force that was being assembled to invade Japan. I’ll never forget, in secondary training I was doing some menial chore when I heard about the atom bomb that had been dropped on Hiroshima. I asked a sergeant, "Is it true that the war is over?" He said, "What’s that got to do with you?" And he walked on. Of course, it had a great deal to do with me because an invasion of Japan would have been a horrible slaughter. It would have made Iwo Jima look tame.

BR: Were you disappointed that you didn’t get into the war?
RHB: Yes, I was. You know how seventeen-year-old boys are. You think you’re immortal. The Marines are a tough outfit, and I was proud of being part of that. I was ready to go.

BR: What did you do after the Marine Corps?
RHB: I went to the University of Chicago, which in those days had a great books curriculum that I really enjoyed. There were a lot of bright, intellectually inclined students there. In the dormitory we were always discussing philosophy or politics or something. They were no doubt callow, sophomoric discussions, but nonetheless, we took ourselves and our academics very seriously.

BR: Were you still a socialist?
RHB: Yes, I was still left-wing, still radical.

BR: Had you formulated any sort of career ambition?
RHB: I didn’t know what I was going to do. Like a lot of young people I was insecure, and I didn’t know enough about the world to just plunge into it with confidence. I toyed with the idea of becoming a journalist, and sent away for an application to Columbia, thinking that I would need a degree in journalism. Of course, that was nonsense. A lot of great journalists don’t go to journalism school. But I didn’t know that. In those days the great books program that Robert Hutchins ran at the University of Chicago was a bit controversial, and the followers of John Dewey feuded with Robert Hutchins. Columbia wrote back and said they did not recognize the University of Chicago degree. They told me that if I wanted to take courses elsewhere for two years they’d be happy to send me an application. So I said to hell with journalism and decided on law. During my senior year a Marine Corps recruiter came around signing people up for a platoon leaders program. I had enjoyed the first stint in the Marine Corps, so I signed up. I went through training at Quantico and came out as a lieutenant.

BR: It was after a second tour in the Marine Corps that you went to law school?
RHB: Right. After that second stint with the Marines I went back to the University of Chicago to attend law school.

BR: Did you have any idea of what kind of law you wanted to practice?
RHB: Yes, I wanted to be a labor union lawyer. But in law school I ran into the University of Chicago economists. My dreams of socialism went up in smoke under their rigorous analysis. I enjoyed economics and studied quite hard at it. My classmate, Abner Mikva, says he had already noticed a change in my attitudes when I came back from the Marines. So it’s a little hard for me to sort out all of the influences. At any rate, it was while I was in law school that my self-professed identity as socialist came to an end.

BR: Did you practice labor union law?
RHB: No. I lost interest in labor unions and decided I wanted to be an antitrust lawyer. I went from law school to the New York firm then called Wilkie, Owen, Farr, Gallagher & Walden. They kept describing this wonderful antitrust case they had, which involved a former major league baseball player who was suing the National League over the reserve clause. I worked on that case for about six months, but then they settled it. After that, I asked, "Where’s my next antitrust case?" They said, "That’s the only one we’ve ever had." So I took my first vacation and used it to go job hunting. Cravath offered me a job in New York, but I decided to go back to Chicago and accepted a job with the firm of Kirkland & Ellis.

BR: What made you turn down Cravath?
RHB: The atmosphere at Kirkland was different from most of the big New York firms. At Wilkie a young associate did research and sent the partners memoranda. If a senior partner wanted to talk to you, you came in and stood in front of the desk at parade rest. You had no contact with the clients. I had the impression, rightly or wrongly, that Cravath would have me carrying Bruce Brambleís briefcase for seven or eight years. Kirkland was much more relaxed. You were on a first name basis with everybody, including the top partners, and there was an informal working relationship. When they had discussions you’d join in and help kick things around.

When I called the partner at Cravath to tell him I was going with another firm, he could hardly believe it. In those days nobody turned down Cravath. He said, "Why?" I told him that I thought I’d get more responsibility at Kirkland. He suggested, with a good deal of sarcasm, that I call him back in four years to tell him about all the cases I was handling. The implication was that there wouldn’t be any. In fact, I was handling my own cases inside four years.

BR: Looking back, do you think you made the right decision?
RHB: Yes. I was very happy at Kirkland. Initially, I thought I’d stay there for the rest of my career, but after seven or eight years I became restless. I didn’t want to spend the rest of my life working on an endless series of cases. I’d done a little bit of writing and publishing, and that appealed to me, so I began to think about teaching. I made the rounds of some law schools, and Yale offered me a non-tenured job. The other opportunity that came up was with Fortune magazine, where I was offered a job as a writer. It was suggested that I could teach law half-time at N.Y.U. and write half-time for Fortune.

I was very tempted by that. Journalism still had considerable appeal, and I’ve often wondered how my life would have turned out if I’d taken that option. But in the end I decided to stick with law and went off to Yale. 

BR: Did you enjoy the academic life?
RHB: It was a great life. I was the only conservative on the faculty, but the liberals were an open-minded group, willing to argue and debate and still remain friends. I found it very stimulating. My best friend, Alex Bickel, was a liberal. We taught some courses together and we’d fight like cats and dogs—and we had a very good time doing it. And the students enjoyed watching the professors have at each other. But the idyll ended when the student rebellion hit, and the university became an intolerable place. There were demonstrations and marches and pickets. Students were taking over buildings. There were three instances of arson in the law school alone. The classroom became a very tense place. You’d get almost no differences of opinion among the students. They were more rigid in their attitudes, less willing to think, than any other group I’ve ever known. The ’60s rebellions ended the fun.

BR: In 1972 President Nixon appointed you solicitor general. How did that appointment come about?
RHB: I don’t know. I’d met Nixon once before. I helped draft a bill on busing, and on the last day our group was called over to the White House and ushered into the Cabinet Room. Nixon came in and went around the table shaking hands with everybody. He came to me and was told, "This is Professor Bork from Yale." Back then, my beard was red. Well, he saw the red beard and heard the words "professor" and "Yale," and he recoiled about two steps. The administration had a massive national education plan that was in the works, and during the course of the discussion something came up that I didn’t agree with. I said, "In order to do that you’ll have to rely on corrupt constitutional law, and I don’t think this administration should do that." Well, Nixon liked that. He said, "I agree with you, but I didn’t know there was a professor in the country who believed that." Maybe that meeting had something to do with my appointment. But I don’t know. I asked everyone I thought might know, but every one of them claimed credit, so I stopped asking.

BR: You just got a phone call from out of the blue?
RHB: Exactly. I was sitting on the living room floor with my son and my daughter watching "The Avengers" on television when the phone rang. It was the attorney general, Dick Kleindienst, whom I’d never met. When my son heard the name, he said the attorney general had been calling all day, but he’d forgotten to give me the message. Kleindienst wanted to know, "If you were offered the solicitor general’s job, would you accept it?" I said, "Yes, I sure would."

The next day I went down to Camp David to meet with President Nixon. He gave me a forty-minute lecture on how judges ought to behave. He was extremely good, extremely knowledgeable. He had a million things on his mind—the Soviets, the Middle East, Vietnam, domestic policies, and so forth. I was impressed that he could give this extemporaneous talk. I agreed with what he had to say, and at that meeting it was decided that I would come to Washington as solicitor general.

BR: Did Watergate give you any pause?
RHB: No. This was right after the 1972 election, which Nixon won in a landslide. The break-in had happened, but I had no reason to think that it was going to become a great national crisis. When I came down to Washington I was almost immediately embroiled in the controversy over Spiro Agnew. That was my first big crisis.

BR: How did that come about?
RHB: The U.S. attorney in Baltimore was doing a corruption investigation when he stumbled across Agnew, who had been accepting kick-backs from contractors going back to his days as governor of Maryland. Elliot Richardson was the attorney general, and the U.S. attorney showed Richardson what he had on Agnew, and Richardson brought me in.

BR: The allegations against Agnew included bribery, extortion, and tax fraud. Were you surprised by the evidence that was presented to you?
RHB: I was shocked. I didn’t expect the vice president to be on the take. The case against him was strong. My thought was, "We’ve got to get that son of a bitch out of here." I felt we had to indict him.

I’ll never forget the day Richardson and I went over to the White House to meet with Nixon and make the case for an indictment. First, we went in to see Al Haig, who was chief of staff, and a number of lawyers, including Len Garment and Charles Wright. It became clear that Nixon did not want the indictment and, finally, we were asked to see him. Walking down the hall to the Oval Office Richardson asked me, "Do you need to go to the bathroom?" I said, "Yeah, I do." Neither of us needed to use the bathroom; we wanted to talk alone before we went in to see the president. We turned all the water faucets on to drown out our voices in case the place was bugged. That was the mood in the administration then. Elliot said, "I think it’s a resignation issue." I said, "You’re right." We agreed that we would resign if Nixon tried to stop us from indicting Agnew. Then we turned off the water and went into the Oval Office. Nixon was there with Fred Buzhardt and Al Haig. Clearly, the White House staff had been set up to stop this idea of indicting Agnew. Buzhardt and I had a lengthy debate. Nixon leaned back in his chair with his feet on his desk and directed the conversation. We went over the evidence, the law, and the policy considerations, and finally Nixon said, "I guess you’re right. You have to indict him." Fred Buzhardt and Al Haig nearly fell off their chairs because that was not what they expected at all.

BR: It was after that meeting that Agnew decided to resign?
RHB: Shortly thereafter. I wrote the briefs against Agnew with two other attorneys in the solicitor general’s office. Richardson, in his book, was kind enough to say that he thought Agnew’s decision to resign with a nolo contendre plea was due to those briefs. We thought the vice president’s lawyers took one look at the briefs and said, "We’re cooked." And they were. Agnew was guilty. He’d done it. He’d been taking money for years. And his argument that he could not be indicted until he had been removed from office did not fly.

BR: As the investigation into Agnew progressed, did you have any involvement with Watergate?
RHB: No. In the summer of 1973 Haig called me over and asked me to resign as solicitor general so that I could become Nixon’s chief defense attorney. Fortunately I had enough sense to say, "Give me twenty-four hours to think it over." I sat up that night discussing it with Alex Bickel and decided that it was not a job I wanted. The next day I went back to see Haig and made some legitimate demands that made it impossible for Nixon to hire me.

BR: What sort of demands?
RHB: I told Haig that I had to hear the tapes. He said Nixon would not agree to let anybody hear the tapes. I explained that I couldn’t put on a case without listening to the evidence. I also made a point of asking who was going to pay me. Nixon? And I was told no, that I’d be on the government payroll. I said, "A government attorney is sworn to uphold the Constitution. If I come across evidence that is bad for the president, I’ll have to turn it over. I won’t be able to sit on it like a private defense attorney." After a few observations of that sort, it was decided that I was not the man for the job.

BR: Did you sense that Nixon was doomed? Was that why you didn’t want the job?
RHB: No, I didn’t know how it was going to turn out. It was obvious that he was swimming in some pretty deep water. Haldeman and Ehrlichman had been forced to resign, and Archibald Cox had been appointed as special prosecutor. So it was serious stuff. But I hadn’t concluded that it was going to end in impeachment or resignation. My reason for not wanting the job had more to do with the substantive issues I brought up in my discussion with Haig.

BR: Later that year, the U.S. Court of Appeals ruled that Nixon had to turn over the tapes that Cox had subpoenaed. Rather than release the tapes, Nixon tried to negotiate a compromise, which Cox rejected. Ultimately, that led to the president’s demand that Cox be fired in what became known as the "Saturday Night Massacre."
RHB: That’s right. The White House came up with the crazy idea of letting Senator Stennis listen to the tapes. It was a lot of nonsense. Cox refused to go along—as he should have. When he rejected the compromise, he was ordered to discontinue his attempts to obtain the tapes. Now, I wasn’t a party to any of those discussions. Richardson had brought me in on the Agnew problem, but he didn’t bring me in on the Cox problem. I was wish he had, because if he’d done so that order to Cox never would have gone out. I was sure that Cox would refuse the order, as he should have, but nobody in the White House discussions seemed clear about that or what to do if it happened.

BR: When did you become involved?
RHB: That Saturday. I watched Cox’s press conference on television at the Justice Department. Cox announced that he couldn’t comply with Nixon’s order, and he said he intended to press on to the Supreme Court. When it was over, Richardson’s secretary stuck her head in the door and said, "The attorney general wants to see you." I went in and found Elliot sitting there with Deputy Attorney General William Ruckelshaus. Nixon had instructed Richardson to fire Cox, and he and Ruckelshaus were discussing that when I walked in. Richardson said, "I can’t fire Cox. Can you fire him, Bill?" And Ruckelshaus said, "No, no. I can’t fire him." Richardson turned to me and said, "Can you fire him, Bob?" At that moment, I realized that in the Justice Department’s succession order I was the third and last. There was nobody behind me to step in as acting attorney general.

BR: So what did you do?
RHB: I said, "Give me some time to think about it." As I thought about it, it became clear to me that Cox had to be fired because the president could not have a junior officer facing him down in public. But that didn’t mean the investigation had to stop. So I said, "Okay, I’ll fire him, but I’ll resign afterwards." Richardson didn’t think that was a good idea. He said, "Why would you resign?" I said, "I don’t want to be viewed as an apparatchik." Richardson felt I should stay on. He said, "The Department needs continuity." If I had resigned the Justice Department would have been without an acting attorney general. If the White House tried to appoint an acting attorney general, there would have been mass resignations. It would have been a hell of a mess. Richardson wanted me to stay to keep the investigation going.

BR: So you issued the order to fire Cox?
RHB: Right. Al Haig called Richardson, and he said, "I can’t do it." Then Haig called Ruckelshaus, and Ruckelshaus said he wouldn’t do it either. Then Haig called me. He didn’t tell me to fire Cox over the phone. Maybe he was afraid I’d say no, too. He asked me to come over to the White House. I went over, and Haig began talking about how the president was facing a Mideast crisis—none of which interested me at the moment. I said, "I’ll fire Cox. The only question in my mind is whether I’m going to resign afterward." Haig seemed relieved. Interestingly enough, he didn’t ask me to stop the investigation. That never came up. I met with Nixon a little bit later, and all Nixon said was, "I want a prosecution, not a persecution." He thought Cox was a Kennedy loyalist, and he was very suspicious of him. We all assumed that the special prosecutor’s staff would continue their work.

Anyway, I sent off a letter to Cox. A day or two later I got the division and department heads together at the Justice Department and told them, "Don’t worry. Cox is gone, but the investigation is going forward." As matters turned out, there were no more resignations. All of the senior personnel stayed in place.

BR: Who appointed Leon Jaworski to replace Cox?
RHB: I did. That was a very odd experience. I’d never tried to appoint a special prosecutor before, and I discovered that it wasn’t easy. We had to find somebody who would get favorable comments from the leaders of the bar when the press started asking questions. You couldn’t just go out and hire a good prosecutor because if nobody had ever heard of that person, the press would think something fishy was going on. So I started going down the list of former ABA presidents. Some of them were pretty good but too old, others were dead or weren’t qualified. The only one who looked just right was Jaworski.

BR: Did you get any resistance from the White House?
RHB: No. Al Haig had independently concluded that Jaworski was the right man. Haig was saying things like, "Now we’re going to get a real professional." And I remember thinking, "Why do you want a real professional? That’s the last thing Nixon needs."

Other people at the White House kept telling me, "The tapes exonerate the president." I kept saying, "Then get the tapes out!" But the White House staffers kept coming up with all sorts of excuses. Listening to the excuses, I began to suspect that the tapes were not going to exonerate Nixon.

BR: When you’re caught up in a national crisis like that, is it a wrenching thing to go through?
RHB: I suppose it was a bit like being chased by a grizzly bear. Your adrenaline runs faster. I’d been in Washington for less than year. It certainly wasn’t what I expected when I accepted the solicitor general’s job. Things were moving incredibly fast and there were so many players—the press, the public, the Senate Watergate Committee, the president, the special prosecutor, the Justice Department staff. But I stuck with the job and ran, or tried to run, the Department from the solicitor general’s office. There were a lot of hurried meetings and quick conversations. Of course, when the tapes were finally released they were devastating to Nixon. The conversations on those tapes were damning. After Ford took over, things calmed down.

BR: When you look back on the Nixon presidency, what do you feel?
RHB: I feel sad. Nixon had the intellectual equipment to be a great president. But he destroyed himself. And for what? I never would have believed that the president had something like the "Plumber’s Unit" in the White House, breaking into Daniel Ellsberg’s psychiatrist’s office and all of that nonsense. It was not only wrong, it was so foolish. So unnecessary.

BR: Fourteen years after Watergate you were at the center of another national controversy when President Reagan nominated you for the Supreme Court. Were you surprised when Reagan nominated you?
RHB: Well, in a way I was. People had been predicting that I’d be a nominee for so long that I thought it would never happen. I was told that President Nixon had it in mind. So that sort of speculation had been going on for years. When Powell resigned I remember a friend asked me, "Do you think you’ll be nominated?" And I said, "No, there’s an entrenched tradition of not nominating me."

BR: But President Reagan did. Were you pleased?
RHB: Yes, but not as pleased as you might think. When I was solicitor general and my name was first mentioned as a potential Supreme Court nominee I found the thought to be unbearably exciting. I didn’t want to think about it because I could taste it. But by 1987 my attitudes had changed. I remember feeling a little sad—and that was when I thought I was going to be confirmed. That was probably due to the fact that going on to the Court means you’re nearing the end of your career. After that, there’s nothing left, nowhere else to go. It’s also true that by this time I’d been on the Court of Appeals for six years, and as solicitor general I’d argued lots of cases before the Supreme Court, so I knew the Court wasn’t going to be the grand intellectual experience people imagine it to be. I’d say I was pleased, but not overjoyed.

BR: Shortly after President Reagan announced your nomination, Senator Kennedy gave a speech in which he said: "Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would have to sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of our democracy."
RHB: I know that speech. Every line is a lie.

BR: Of that list of allegations, is there one that you found particularly painful?
RHB: Yes, due to the orchestrated campaign against me black Americans were given the impression that I was their enemy in the courtroom. That was a slander that I thought particularly odious.

BR: Do you feel like your record on civil rights was distorted?
RHB: I didn’t have a record on civil rights. [laughter] Prior to becoming a judge I was an antitrust lawyer and a law professor. As a judge there were cases in which I ruled in favor of minorities and cases where I didn’t. But this notion that I wanted to turn back the clock and that I was in favor of segregation was nonsense. I’ve always believed that segregation and discrimination are unconstitutional. And this business about not being able to teach evolution in public schools, where the hell that came from I don’t know. I happen to think that evolution is a scientific fact. So, yes, my views were badly distorted.

BR: Why do you think that happened? Why did the campaign against your nomination become so intense with public interest groups running advertising campaigns against you?
RHB: I was perceived as the swing vote on abortion. I think Roe v. Wade was probably the litmus issue. The opposition didn’t want a narrow focus on a matter that would be pending before the Court, and a matter on which many people agreed with me, so they got people all worked up about false and extraneous issues. They used anything they could dream up, without regard to truth.

BR: When Lani Guinier went through her experience, she too claimed that her record was distorted. Did you feel any empathy for her when she was under fire?
RHB: Yes, I did feel some empathy for Lani Guinier. Although I don’t think her record was distorted. I think she meant what she said when she wrote those articles. But President Clinton behaved in a very base fashion. Guinier wanted to go to the hearings and explain herself, she wanted to discuss what she was being accused of. Clinton should not have nominated her, but having done so, I think President Clinton should have given her that chance. Of course, President Reagan had his flaws too. His administration demanded loyalty up, but not down. When my nomination got into trouble, he took off for his ranch and didn’t get involved in the fight. There were others who were treated that way, too.

BR: Are you bitter over the way you were treated?
RHB: No, not at all. There are people on Capitol Hill who didn’t rise in my estimation. But I’m pleased with the way my life has turned out. During the Nixon administration, when the Court was closely divided, I remember one of the justices said to me that if his vote weren’t so crucial, he’d resign and write a book. Well, I got my chance to write books without having to resign.

BR: You’ve written two books that have made the New York Times’ bestsellers list. Is being a best-selling author as satisfying as being a Supreme Court justice?
RHB: I think so. One of the reasons I went into the law was that I thought it would allow me to stay intellectually alert all of my life. If I have a regret it’s that I wish I’d spent less time reading law and more time reading worthwhile books—classics that have lasted for a long, long time. I’m belatedly trying to make up for that now. I’m still not divorced from the law. I still do legal work, but I do less of it than I did for most of my life. And I’m doing a lot of writing. Charles Krauthammer describes himself as a psychiatrist in remission, so I guess I’m a lawyer trying to go into remission.

BR: You mentioned that being accused of being a racist was disturbing. Has there been any carryover? Does that still haunt you?
RHB: No, nobody calls me that anymore. They only called me objectionable things when the stakes were high. When words like "racist" and "sexist" get bandied about in a politically charged environment they tend to lose their sting. As I travel around the country the people that come up to me are all quite friendly, including a lot of black people. Any carryover I’ve had has all been positive.

Of course, some of the recognition is not entirely accurate. A while back I was in an airport bookstore, and a woman came up to me and said, "Sir, we are heeding your warnings." I was taken aback and said, "What warnings?" She said, "You are the surgeon general, Everett Koop." I am told that people stop Dr. Koop and tell him that they are sorry he was not confirmed.