This will be the last in a series of posts in which I’ve shared some documents that I uncovered during a recent visit to the Reagan Library. Today, offered for your consideration are a few internal memoranda, dating from 1986 and 1987, that evaluate Robert Bork as a potential nominee to the United States Supreme Court.
The first of these memos, which I suspect (but cannot confirm) was written by an attorney or attorneys at the Department of Justice, was prepared when Judge Bork was being considered for the 1986 round of nominations that led to Antonin Scalia’s appointment as an associate justice and William Rehnquist’s elevation to the chief justice position.
This memo is pretty short. This brevity is understandable, given that President Reagan ultimately did not nominate Bork to the Court in 1986. What the memo lacks in length, however, it more than makes up for in ruthless candor. In its last paragraph, the memo touches upon certain “miscellaneous factors that bear on the desirability of appointing Bork to the Court.” To wit, “First, if [Bork] is passed over for the next opening on the Court, he may be insulted and resign from the District of Columbia Circuit.” OK, even if this comment assumes that Bork is a pretty peevish fellow, it’s a fair point for consideration. What else? Well, the writer touches upon Bork’s role in the “Saturday Night Massacre” (again, fair enough), and then notes, “further, [Bork] is 59 years old, smokes heavily, drinks somewhat and engages in little if any exercise. This indicates that his tenure on the Court may be of a shorter duration than other potential candidates.” Ouch, or as Hank Kingsley would say, hey now. (Just in case you missed the memo-writer’s “hidden message,” allow me to translate: “Bork is fat, old, and he doesn’t take care of himself. He will die soon.”) Bitterly defying this tut-tutting over his personal habits, Mr. Bork is still with us today, at the ripe age of 85.
The second and third memos were prepared in 1987, shortly before President Reagan nominated Bork to fill Lewis Powell’s former spot on the Court. We all know how that turned out. (Hint: not well.) These memos are somewhat longer than the 1986 assessment, and present more thorough analyses of Bork’s approach to judging, and his viability as a candidate for the Court.
The first of the 1987 memos is a summary of the “General Considerations and Confirmability” that surrounded Bork as a Court candidate (similar to the Scalia and Kennedy summaries that I posted a few days ago). The second appears to be another Department of Justice breakdown of Bork’s judicial philosophy (though again, I cannot confirm its provenance), which is significantly more detailed than its 1986 counterpart was.
What’s striking about these memos, in hindsight, is how readily confirmable the authors thought Bork would be. (Other commentators, reflecting on the Bork nomination, have made similar observations.) In assessing Bork’s confirmability, the first of the 1987 memos emphasizes that Bork “is . . . supposed to be a tremendously warm human being and very witty,” as if that matters a whole lot, and relates that “Bork is also described as much more likely to be confirmed by even a Democratic Senate because he is ‘much older and less radical than some of the other alternatives’” (quoting a media report). And in an almost touching display of naive oversimplification and obliviousness, the memo-writer continues, “The media will also be kind to Bork because of his strong support for the First Amendment in a recent libel law decision.”