TOP
Robert Bork Jr.
Chapters
The FRONTLINE Interviews
Robert Bork Jr.
Son of Supreme Court Nominee Robert Bork
Robert Bork Jr. is a communication strategist focusing on legal policy and litigation. He is the son of Robert Bork, a judge and legal scholar whose nomination to the Supreme Court was rejected by the Senate in 1987.
This interview was conducted by FRONTLINE’s Michael Kirk on January 24, 2019. It has been edited for clarity and length.
This interview appears in:
Text Interview:
Highlight text to share it
President Reagan Names Robert Bork as his Supreme Court Pick
Give me a sense of who your dad is at the time before he's been nominated by President Reagan.
My father was a sitting federal appellate court judge in Washington, D.C., and had been doing that job for about five years.Before that, he was a professor at Yale Law School.And before that had spent about four years in the Justice Department as solicitor general.
And as a personality?
He was actually a kind of funny, easygoing guy.Very popular with journalists in Washington and a wonderful wit.But all that changed with the nomination.
So tell me about the moment of the nomination when President Reagan nominates him.Are you there? Is it at the White House?The public moment.
Well, I knew that it was coming.He had been interviewed secretly across the street on Lafayette Park.There are a number of small townhouses that the government uses, and he met people over there to talk about this.And in fact, when he was nominated, when the announcement came, they picked him up on a street corner and drove him to the White House secretly to do this, not that anybody was going to be surprised by his nomination at that point.
I was working at US News & World Report as a writer, economics writers.And some friends of mine from the White House Counsel's Office called me and said, "It's happening now."So I jumped in a cab and came running over and managed to get through security and into the White House press room just about a minute after they arrived, the president and my father arrived, and got to watch the announcement.
Why all the secrecy?Robert Bork was a very well-known figure at the launchpad for the Supreme Court, which is the appeals court.
That's probably all PR.They want to, you know, make their announcement.They don't want to have the press controlling the announcement, so they wanted to do it on their terms.
What was it like to watch your dad get picked and have the president of the United States make that announcement?
It was very exciting.It was wonderful.I was very proud of him.It was kind of moving to see that.
In what way?
Well, you know, my father had been a highly regarded, well-known law professor.He had been through the Nixon fiasco and I thought had behaved and acted very honorably through that, but had taken a beating in the press then over the Saturday Night Massacre.And this was in some ways, I thought, an affirmation of him after having done all that, getting back to his core; really in a sense rewarding him, not for what he'd been through, but it was the capstone of his career.That's what it was.
And from his point of view?Do you know what it felt like?Was it relief that finally it happened or what?
I think it was to a certain extent—I wouldn't call it relief.I would say it was—I think he was overcome by the moment when we got home from that.And I was with him.Got a very strong sense that he realized that this was the finale of his legal career; this was the culmination of everything, and he was very much looking forward to doing it.
Tell me, Mr. Bork, what was the environment for advice and consent really prior to—I understand [Harrold] Carswell and [Clement] Haynsworth and a few other things during the Nixon administration, but generally speaking, the world of Congress and the Senate was pretty benign about picking Supreme Court nominees or advising and consenting to sort of Supreme Court nominees during the decades before your father's hearing.So in the pre-moment before this happens, what was the environment like?
I don't think anybody thought it would be much different than what had gone before.And if you think back to Reagan's previous nominations, they were all easy.Of course, Reagan nominated the first woman to the Supreme Court, Sandra Day O'Connor; that was well received.My father's own confirmation to the D.C. Circuit Court of Appeals was, I think, 98-0 also.So no one expected the kind of fury that came.But that changed within about 45 minutes of his nomination.
Ted Kennedy and the Case Against Bork
Ted Kennedy (D-Mass.) walks out onto the Senate floor and just cuts loose.Your father's reaction to that moment?
I think two reactions.One was that it was unbelievable because it wasn't him; he was not the person being described by Ted Kennedy.And the other one was almost not to take it seriously because it just was so over-the-top.I took it very seriously.As I said, I was at the White House for the announcement.Went back to the White House Counsel's Office with friends of mine, one of whom was a former clerk to my father, and we were watching this on TV as we were drinking champagne in the Counsel's Office.And I said, "Are you guys ready for this?"And they said, "Oh, yeah, don't worry about it!"Well, they weren't ready.Nobody was ready.
It was, from what we can tell and people we've talked to, it was a planned counterstrike in lots of ways.They had a war room.They had Gregory Peck.They had TV ads.They had People For the American Way money.They were ready, locked and loaded for Robert Bork.
There were 300 groups organized—a few major groups, but there were over 300 groups coordinating the assault.And I've got to say that although it looked like a vicious attack was what actually brought his nomination down, I think it really was dead before; we just didn't realize it.Because the Democrats had won the Senate in '86, so this is now a few months later in '87.There was no way that he was going to get confirmed.The president was weak over Iran-Contra; it was toward the end of his term, his second term.… The groups made it possible for wavering Democrats to vote against him, Democrats who would normally vote for him.And they ginned up enough—the groups ginned up enough anxiety and anger in the South that conservative Democratic senators didn't, couldn't do it, couldn't vote for him.
You sat behind him—
Yes, I did.
I've seen the stock footage of you back there.What was it like in that room as the hearings were underway?
It was kind of tense.It was tense.It was long.We were sitting there for 10 hours a day with a recess for lunch, maybe another break in the afternoon.TV lights.Very hot TV lights.And there was a certain sense, when you're the family member, that there's absolutely nothing you can do.You want to say things back to the senators; you can't do that.You want to tap your dad on the shoulder and say, "I would say it this way."Can't do that.But it was a very difficult thing to do.And we were there for five days. The family sat there for five days with him.
Could you feel the cascade happening, the slipping away?
I didn't think it was going well.I didn't feel a cascade that it was slipping away; I just thought it was torture.It was just, you know, water torture the whole time.And the thing is, these were hearings, but nobody was listening.They were asking questions in the hope of catching him out, and he would very graciously explain his position, explain his votes, explain his writings, but nobody cared.It really wasn't about what he said; it was about, I think, building a consensus among the Democrats and, as it turned out, one Republican or two, so that they could win.But he was never going to get out of committee—Joe Biden (D-Del.), the Democrats controlled the committee.That was a foregone conclusion: He would never get out of committee.
So we spent a lot of time thinking we could win.We spent a lot of time thinking, you know—and we had our own war room for the hearings, and there were people there looking through his writings, looking for responses, feeding information to Republican senators so that they could ask questions.But it was all for, really for naught.It was done.You know, the cake was baked back on Election Day 1986.
Let me ask you something: Why?
Why what?
Why him? Why then? Why that moment?What were they doing? What was really going on with them?How big were the stakes? How high were the stakes for them?
The stakes were enormous for the Democrats.My father—well, first of all, you had Sandra Day O'Connor, you know, a Reagan appointee.Didn't really know at that point what kind of justice she was going to be; she'd only been on the court for a few years.And you had Rehnquist elevated to chief, and Scalia, who was a conservative powerhouse and, you know, an originalist of the first degree.Adding my father on to replace Lewis Powell would have meant a conservative, if not majority, a strong conservative bank of justices on the court, and I think for liberal Democrats, that meant a shift in the tide in jurisprudence from the court that would probably lose it for a generation for them, and they couldn't let that happen, because it was an extraordinarily—the court was extraordinarily important to both sides, to both the left and the right, but it was really even more important, I think, to the left at that point.And they just couldn't let it happen.
When you'd go home at the end of the day or talk to him during recesses, what was he thinking?What did he think was going on?
Well, he really didn't think much about the politics.He really thought about how he could explain his point of view and, you know, there were people who were advising him to be, in a sense, more political, to couch his answers in more political ways.And he just couldn't do that; that's not who he was.He was not a politician.He was an intellectual; he was a lawyer who had been exploring ideas in the law for decades at that point, and had come to a certain philosophy about the constitutional interpretation and about other issues like antitrust.And he couldn't play that game.You know, apparently—I wasn't there, but I understand he wasn't particularly helpful during the murder boards that they routinely do with nominees before and since.He just wouldn't—he wouldn't speak in political terms.
And in fact, if I may jump ahead here, toward the end, when all of us were very frustrated with the process—this was after he'd finished his part of the hearings—I called some friends at the White House and said, "I've got to do something; I've got to get off the sidelines; I've got to, you know, help."So I wrote an op-ed in <i>The Washington Post</i> that explained why the picture that was being drawn of my father was not the one—was not the true picture.And that op-ed garnered invitations to go on talk shows, so I did Good Morning America with Charlie Gibson, I think another one for CNN.And my father called me and told me to stop.He said: "This is not dignified.We don't—this is not—I don't want you to do this."And I told him, "We've got to do something."He said, "But I don't want to do this; I don't want to play that game." …
Was there a moment, other than the [Patrick] Leahy (D-Vt.) moment, the questioning about money from Leahy, finances from Leahy, are there other ones that you remember thinking, these are especially galling to him?
Every day.A, and multiple times.
The one a lot of people roll out for us is the “intellectual feast” answer.What do you think about that?
I think anybody who thought—look, as a sound bite, it played right in to the other side's hands.But if you watch the full exchange, what he said after that, immediately after that, you see an entirely different context to that quote.But everybody, everybody cringed when he said it because we knew how it would be used against him—not that what he said was wrong, but how it would be used.That's how things have changed in Washington, which is, you have to be so careful—looking just, you know, in the news today, the way video is chopped up and cut and—one person's comment is benign in its totality, but as a snippet it's damning.That's what happened to him.It was unfortunate.
… Meanwhile, he's cooking his own goose.
I don't think—again, I don't think he cooked his own goose.I think the goose was cooked before he was nominated.It almost didn't matter who it was going to be.The Senate had been won by the Democrats in '86.It was game, set and match no matter who was nominated.He just provided a very target-rich environment for them.
… Let's talk about Leahy and Leahy's question.How angry was your father at that question?
He almost couldn't speak.My father almost could not speak when Leahy asked him the question about why he had been earning outside money from his law school salary in the years—in the late '70s and 1980.And the sad thing was, Leahy knew why; he pretended that he didn't know why, but he– I don't know he– I don't know why Sen. Leahy thought that that was something that was so tantalizing for him to use, because it was cruel and heartless.
What was the real answer?
The real answer was that my mother had been diagnosed with cancer, and had had a number of operations.And her medical care was extraordinarily expensive.And on a Yale Law School professor's salary, it was more expensive than he could afford.So he was consulting to corporations on legal issues in order to pay the medical bills.And my father found the question to be designed to hurt him, not to elicit any useful information.
Why couldn't he just slam-dunk Leahy?
That's not who he is, not who he was.He was not going to engage in ad hominem with him.
Robert Bork Does Not Back Down
When did he know he was done?
I think he knew after the hearings, before the vote.There was a lot of pressure to withdraw.Ultimately he decided not to withdraw.Gave a wonderful statement to that effect at the White House in October.
Did he talk through that with you?
We were all sitting around in his office at the court—my brother; my sister; my stepmother, Mary Ellen; Judge [A. Raymond] Randolph, then-private attorney and a very close friend.And Alan Simpson (R-Wyo.) called him at about the same moment that we already had decided as a family that he couldn't give in to them, to this assault.Simpson called and said he wanted to tell him something important, which was he'd thought about it and didn't think he should withdraw.No one had any sense that it could be turned around, that he could win a confirmation vote, but they all felt there were important issues at play, and that at least—and Simpson promised him that they would—the senators, Republican senators—would make the case for him on the floor, even though no one thought he would actually get confirmed.
What were a couple of the big issues that were at stake that they wanted him to stay in the game for?
The biggest issue really was that this was a perversion of the process and it couldn't be allowed to go unanswered.That's what my father said, and that's what many of them said on the floor.[John] Danforth (R-Mo.), I think, commented on the floor, Sen. Danforth commented that what was happening was embarrassing for the body, and that, you know, this was not how they should treat a nominee for the Supreme Court.I think nobody cared at that point on the other side.Certainly he lost several Republican votes as well.It was all politics.
One of the people who stands up in the Senate, who will have a role in this process over the decades, is Mitch McConnell (R-Ky.).We found some stock footage of him as a young, dark-haired man, standing up, and he basically wags his finger at the Democrats and in effect threatens them and says: "You know you've crossed a line here.This is never going to be quite the same.And in the future, sometime in the future, you're going to rue this day."I'm not quoting him directly, but that's essentially what he says.In our film, Mitch's rise and role will be part of the aftermath of what happened to your father.
I think you've said it was a watershed moment before.Is it? How is it?Some people have called it the original-sin moment.What do you call it?
I call it the day that everything changed in the Supreme Court nominations and politics.It's the day I think—you know, the Supreme Court was and always has been, to some extent, political.The day that my father's nomination was defeated was the day that it was irrevocably changed, and the Supreme Court as a political football, as a political institution, that cake was baked on that day.
How did he feel about the verb "borked"?
He thought it was funny, and he used to frequently, frequently joke, speaking to audiences and others, that it was a form of immortality.You know, I suppose there are other, better forms of immortality than that one, but it was funny.
What did you think?
I think it's amusing.But it's—I think he's going to be remembered less as a verb and more as a lawyer and professor and intellectual and a founding member of a group or a philosophy of judging that I hope is going to continue for decades to come.
The Federalist Society as a Response to Bork
He plays a central role in the creation of the Federalist Society.He's one of the first advisers at Yale.Scalia's at Chicago.Ted Olson, who's going to come in here soon, speaks at the very first sort of symposium of the Federalist Society at Yale in '81.Talk to me, to the extent that you know about things, how much Judge Bork actually, what the idea was, what he cared about about it.We all know of the success, but back in its early days, what was the Federalist Society, and why was he so interested in it?
The Federalist Society was a response by students at Yale and Chicago, principally at first, to the left-wing faculty and teachings of the law schools that they were in.My father used to joke that when he was at Yale Law School, he was one of two conservative professors, and that his colleagues thought that was two too many.So the Federalist [Society], it was really a student-driven response to that.But they went looking for, you know, faculty support, and they found my father, and he was instrumental at the beginning in doing that, along with the other conservative at Yale Law School, Ralph Winter, who's now a judge on the 2nd Circuit.
And how important was that, the creation of that?
You know, it could have started out as kind of just a response and petered out when those students went on to—you know, graduated from law school, but it really found root and turned into something quite remarkable.It has been, I think, fundamental in building slowly over time into an organization that has helped change the face of law, changed the face of the courts in this country and of practice of law.
It mattered to him as he watched the growth, the growth between when he—and by the way, some people we talked to said when his nomination doesn't pass, it energizes this movement that could have just been sort of students and, as you say, maybe even only one class or two of students.It energized a whole movement so that I think the numbers are astonishing, going from two or three campuses to suddenly 100 campuses and all of that.
Yeah, it did.It was a rallying cry that allowed them to build the organization.I'm, even today now, almost 40 years later, amazed how many people come up to me and tell me what that event meant to them.And it's hilarious, actually, because I'll be on the phone ordering, you know, light bulbs or something, and the person on the other end will recognize the name and want to say something.People want to tell me that it was important to them.And I don't go looking for it, but they want to tell me.
What was important to them?
They thought it was, that he was treated horribly, that he was treated unfairly and dishonestly in that process.And a lot—some of these people didn't even see it, you know; they were too young.But they've heard about it.Many were there.It really is something that I think has made its mark at the time in the minds of a lot of people and has grown over time.
The Legacy of the Bork Nomination
So when you look back on the arc of Bork, to [Clarence] Thomas, to the Merrick Garland moment, the McConnell moment where he says, "We're going to wait," to [Brett] Kavanaugh, how has the landscape changed since the days when you were sitting behind your father in that room?What is different?When you look at it, what have we lost?
Well, we've lost a number of things.We've lost an ability for a nominee to talk openly and honestly about their judicial philosophy.I'm not saying that people were dishonest; they just weren't going to talk about it; it's too dangerous to talk about your views or what you might do as a nominee to a court.What we've seen, I think, though, is the exploring new and ever-more surprising ways of politicizing this process, from—you know, much of my father's confirmation hearings was about his views.Justice Kavanaugh's confirmation hearings had nothing to do with his views; it was just, as he said, the process went from advice and consent to search and destroy.And that's where we are now.I wonder who would take on, you know, allow themselves to be nominated in the future, because it can't get any better.
… Was he happy before his death?What year did he pass?
Six years ago.
Six years ago.So the Federalist Society was a potent force by then, tens of thousands of lawyers.Was he happy to see that?Was he comforted in some way that he had contributed to such a—because if you look at a single thing that really seems to matter in terms of a change in the direction that he wanted to have happen, it seems like they are the manifestation of that.Certainly with what happened with Trump, with the list and Trump's own election—which we've had people come in the room and say [is] completely attributable to the fact that he had that list of conservatives that was handed to him by [Leonard] Leo and others and [Don] McGahn at Jones Day in March of 2016—did your father take some pride in the power and sweep of the Federalist Society?
The Federalist Society I think was one of the things about the law in this country that he felt most proud to have contributed to, and I think they have embraced him and his legacy equally strongly.
It's an amazing thing.As you look at groups that can grow and how actually fast they become forceful and potent, if I were him, I would sit there and say, well, maybe I wasn't on the court, but in a way there's a lifetime of change that's a result.
You know, it is—as you say, he wasn't on the court.It reminds me, he really was—you know, I think, all things being equal, he would have preferred to have been confirmed, but as I often said to him, and he acknowledged himself, it really did give him the freedom to write about his views and his ideas.He had two best-selling books and several others out of this.I think more people, if he'd been confirmed, fewer people would have known who he was and what his ideas were about jurisprudence than do now.So he had an enormous influence after the fact.And perhaps those who defeated him will wonder—I shouldn't say that.They'll never wonder whether that was the right outcome, but they really did set him up to continue educating lawyers and the public about what the law should be.
And activated an entire group of young lawyers to aspire to the change that he encouraged.
I think you're right, I think you're right.
Latest Interviews
Latest Interviews
Policies
Teacher Center
Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation
Koo and Patricia Yuen
FRONTLINE is a registered trademark of WGBH Educational Foundation. Web Site Copyright ©1995-2025 WGBH Educational Foundation. PBS is a 501(c)(3) not-for-profit organization.
Funding for FRONTLINE is provided through the support of PBS viewers and by the Corporation for Public Broadcasting. Additional funding is provided by the Abrams Foundation; Park Foundation; the John D. and Catherine T. MacArthur Foundation; and the FRONTLINE Journalism Fund with major support from Jon and Jo Ann Hagler on behalf of the Jon L. Hagler Foundation, and additional support from Koo and Patricia Yuen. FRONTLINE is a registered trademark of WGBH Educational Foundation. Web Site Copyright ©1995-2025 WGBH Educational Foundation. PBS is a 501(c)(3) not-for-profit organization.
