For Want of a Nail
From the November 20, 1987, issue of NR.


Maggie Gallagher

In the end-game of the Bork nomination fight, Senator George Mitchell gave the Democratic explanation of Bork’s failure. “Judge Bork will not be confirmed for one simple reason. The American people agree with the Supreme Court. They don’t agree with Judge Bork.”

Rubbish. Bork was not confirmed because the American people heard only two messages. Senate liberals said Bork favored sterilization and Jim Crow, and that he opposed contraception, civil rights for women, and free speech. The White House said Bork was a distinguished egghead. When it is framed this way, Bork loses.

Ronald Reagan’s great strength has been his ability to set the terms of the debate. But in the tussle over Bork, the Reagan magic was nowhere in evidence. The failure to win confirmation for Bork proves one great and obvious law of politics: When only one side fights, it wins. That failure also points to serious weaknesses, not only in the Reagan administration, but in the conservative movement.

Of course, hindsight is 20-20: “The attack on Bork was vicious and unprecedented,” says Randy Rader, Senator Hatch’s aide on the Judiciary Committee. “The White House relied on rules that were in place for a hundred years.”


Afraid of Our Issues
The Office of Legislative Affairs, headed by a Howard Baker ally, William Ball, was the coordinator of the pro-Bork effort. Its strategy was to stress Bork’s credentials and downplay politics. Administration officials passed the word that conservatives shouldn’t emphasize right-wing issues like crime, abortion, and racial quotas, while well-intentioned columnists like George Will warned that Bork’s conservative supporters might sink him. “It was a typical liberal Republican thing to do,” remarked one former Reagan Justice Department official. “We can’t talk about our issues because we’re afraid of our issues. The White House said don’t explain that ‘privacy’ is a code word for abortion — so, great, we got contraception instead.” “They’re congenital compromisers,” says Dan Casey of the American Conservative Union, speaking of Baker’s White House staff. “They didn’t realize in this kind of battle you can’t compromise. You either win or lose; you don’t slice the salami on a Supreme Court nomination.”

The Left, as we now know, was not so easy-going. Joseph Biden delayed the Judiciary Committee hearings an unprecedented 76 days (a delay that Ted Kennedy now admits was scheduled solely to aid an anti-Bork media campaign). Paid media time was reinforced by an adroit use of “free” media. An anti-Bork TV commercial featuring Gregory Peck, for example, received its widest airing when networks covered it as news. A sympathetic press considered it news when the ACLU for the first time in its history came out against a nominee, but not when the National Law Enforcement Council, breaking with precedent, endorsed Bork. Then came the polls: “First there’d be a negative media blitz,” says Pat McGuigan, legal-affairs analyst for Coalition for America and co-editor of The Judges War. “Then right after that, pollsters would go into the state. I’ve no evidence, but it sure looked coordinated.” A widely publicized Harris poll, showing 57 per cent of the American people opposed to Bork, used shamelessly slanted questions to produce negative results.

Behind the scenes, organized labor threw its weight against Bork. “A key event happened in August,” Dan Casey told me. “That’s when I noticed the unions kicking into this thing. The AFL-CIO just quietly let senators know, ‘This one counts to us.’”