by Robert Morrison
October 8, 2014
Tony Kennedy had just been confirmed to a life appointment on the U.S. Supreme Court in late 1987 when I got an invitation to lunch from a lawyer in a well-respected Washington firm. John Connolly was a man I had never met. Mr. Connolly, I was informed, was Pat Buchanan’s brother-in-law. The message my assistant gave me was that this estimable gentleman just wanted to thank me for my efforts on behalf of Judge Robert Bork.
Earlier that year, we had been through a brutal confirmation battle. The good and decent Bob Bork, an eminent constitutional scholar, had been savagely attacked in the mass media.
Liberal activists had left no stone unturned or uncast in their hunt for anything to stop Judge Bork from being confirmed as President Reagan’s third Supreme Court nominee. They had failed to derail Chief Justice Rehnquist, though they slimed him. They never laid a glove on the beloved Justice Antonin Scalia. Everyone loves “Nino,” it seems.
But they were primed for Bob Bork. No sooner had President Reagan announced his choice on July 1, 1987 then Ted Kennedy burst onto the Senate floor with a scurrilous and scandalous attack. Thus was born “Borking.”His video rental records were ransacked by liberal activists — those famous advocates of privacy rights. Civil liberties proponents looked the other way as a Democratic senator demanded Judge Bork describe his religious beliefs while he was under oath.
I had prayed for Judge Bork. He was one of America’s most distinguished (Yale) professors of law and a most highly regarded judge on the U.S. Circuit Court of Appeals for the D.C. Circuit. Because he had criticized the Supreme Court’s ruling in the infamous Roe v. Wade case of 1973, Kennedy charged the judge with being anti-woman.
This was the first appearance of the “war on women” theme that liberals have been pushing. Ted Kennedy was a famous respecter of women, as all those whom he had pawed and preyed upon surely knew. In those years when he was posing as a champion of women, Kennedy and one of his Senate boys had even pursued women under the tables at one of Washington’s more fashionable eateries. I think it was a place called Mon Oncle, or some such.
Judge Bork had had to endure Ted Kennedy’s calculated rudeness as the Massachusetts lawmaker refused to call him anything but “Mr. Bork.” Bullying and berating, Ted grilled the judge about his ruling in an interstate trucking case.
I was in the Senate hearing room as Ted Kennedy, of all people in America, bored in on the fine points of interstate highway driving. Jimmy Carter’s campaigners had made sure in 1980 that all Americans knew that it was Kennedy who had abandoned a young woman to die of asphyxiation after he drove his car off a bridge at Chappaquiddick back in 1969.
I had hoped the Judge would stand up at the witness table and ask his Grand Inquisitor if it could be true: “Are you really questioning my judgment in a traffic safety case, Mr. Kennedy?” But the Judge was ever the gentleman and, like Aslan the Lion, he let himself be led to slaughter by these scampering tormentors.
The reward for my work was to be this “Power Lunch” with an honest Washington lawyer. I seem to recall it was the Occidental, at the Willard Hotel. I do not remember what I ordered for what was to be my only Power Lunch in thirty years, but I remember what Mr. Connolly taught me then.
Since deceased, this practiced Washington power attorney expanded on the choice of Supreme Court justices and what we as pro-life conservatives should seek in a nominee.
He had the highest praise for the recently-cast down Judge Bork. But he had this warning:
Bob Bork is so intelligent and so honest that he might have found a better constitutional basis for abortion. Remember, he told the Senate Judiciary Committee — under oath — that he had no opinion on abortion as such, he had merely done what many liberal constitutional scholars had done: He critiqued the Supreme Court’s reasoning in this case.
I knew John Connolly was right about those liberals who had criticized the opinion that Harry Blackmun had managed to cobble together with smelly gluepot and used string, rather like Mr. Dick’s Kite in Dickens’ David Copperfield.
Blackmun’s opinion was dismissed by a number of serious students of the Constitution, starting with Yale Law School’s John Hart Ely.
Ely was a famous constitutional law professor (and personally pro-abortion). Ely had said [Roe is] “bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.”
Then, there was this liberal’s analysis of Blackmun’s opinion in Roe that showed why even the liberal clerks at the Supreme Court were calling the ruling “Harry’s abortion.”
Archibald Cox’s liberal credentials could hardly have been better. He was virtually a legal advisor to the Kennedys. He had earned martyrdom among liberals when, as Independent Prosecutor in the Watergate Affair, he had been fired by then-Solicitor General Robert H. Bork. But even this distinguished Harvard Law professor dismantled Blackmun’s shoddy legal reasoning and even worse history:
Blackmun’s opinion, Cox wrote;
‘“fails even to consider what I would suppose to be the most important compelling interest of the State in prohibiting abortion: the interest in maintaining that respect for the paramount sanctity of human life which has always been at the center of Western civilization, not merely by guarding life itself, however defined, but by safeguarding the penumbra, whether at the beginning, through some overwhelming disability of mind or body, or at death.”
Cox further argued, as National Review publisher Jack Fowler tells us: “The failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations, whose validity is good enough this week but will be destroyed with new statistics upon the medical risks of child-birth and abortion or new advances in providing for the separate existence of a fetus… . Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution.”
All of this was part of my post-confirmation luncheon and tutorial with John Connolly.
But then he went on to reassure me that it might all be for the best. “Bob Bork is a racehorse. We don’t need a justice on the Supreme Court who is a thoroughbred. We need a mule. We need someone like Tony Kennedy who will patiently pace along for twenty, thirty years. Just a mule who will pull the barge along the canal day in and day out. The U.S. Supreme Court is a dangerous place for someone like Bob Bork who views it as ‘an intellectual feast.’ Better an unimaginative plodder like Tony Kennedy. Better a mule than a racehorse.”
I learned a great deal in my Power Lunch with that good man, John Connolly. I wish he were still here. I would have pointed out to him the record of nearly thirty years of our “mule” on the Supreme Court.
The problem is this: When the mules get to the U.S. Supreme Court, they start thinking they are all racehorses.