Patrick B. McGuigan
– Twenty-five years ago, on October 23, 1987, Judge Robert H. Bork
’s nomination to the U.S. Supreme Court was rebuffed 58-42. It was the worst defeat for a Supreme Court nominee in American history.
Then-Senator Joe Biden
of Delaware, now vice president, was a key player in organizing opposition to President Reagan's first choice for the vacancy created by the resignation of Justice Lewis Powell.
Beginning as a legal researcher and writer at the Free Congress Foundation, Paul Weyrich
's research group in Washington, D.C., I had long supported Judge Bork and others as they advanced the intellectual case for judicial reform.
That band of brothers and sisters viewed the judicial role not with uniformity, but through a “Madisonian” lens, fighting the tide of what we viewed as activist rulings dating over many decades. As years passed, I came to consider Bork the greatest man I have ever known – not the most easygoing or affable, but the greatest.
He favored “originalism,” an attempt to find the meaning of law in plain words and in the context of the time a law or constitutional provision first passed. He argued that those who looked outside the language of law and precedent had nowhere to turn other than their own preferences.
Initially a mere researcher, writer and journalist, I had begun by the mid-'80s to labor in actual coalition-building and lobbying. When Reagan nominated Bork, I wound up organizing the outgunned and outmanned political conservatives who supported his Senate confirmation.
Bork and I became friends in the early 1980s, so my professional struggle for his confirmation was also deeply personal.
In that fight, as foes began to pound Bork mercilessly, I often tried to turn the tables with humor. In an interview with a New York Times reporter I invented a “Beards for Bork” campaign – promising not to shave until he was confirmed. The reporter enjoyed the story, and wrote it up.
It garnered more attention than anything I did during a decade of work in Washington, and was the source of years of good humor – something rare during the fight itself – across battle lines between me and “frienemies” on the political Left in D.C.
Early on the evening of the day we lost the Bork fight, a few hours after the vote ending the activity which had been my prime focus for so many months, I was sitting at the bar of the Joseph Story Society, an educational and fraternal organization of conservative and libertarian lawyers and legal analysts, behind the Supreme Court on Second Street, N.E. in the nation's capital.
With me was Dan Casey of the American Conservative Union, my comrade in arms and “co-captain” in the outgunned and outspent effort to confirm Judge Bork.
We came to the club, as we called it, quite determined to finish a bottle of Irish whiskey, and were making a respectable effort to do exactly that.
I called the Judge. Himself. To my surprise, he answered -- himself.
“This is McGuigan,” I said.
Bork said, “Hello, Pat. I'd like to talk, but I'm on the [other] phone right now. Could you try later?”
Thirty minutes later, we were on the line again.
“Counselor, I have a problem I need your advice on,” I intimated.
“Well, you see, this friend of mine got nominated to the Supreme Court. This damn reporter called me and asked me what I was going to do to make sure my friend got confirmed. Like an idiot, I said I was going to grow a beard and not shave until he was confirmed.”
Bork began to laugh.
“My trouble is,” I continued, “my wife hates the beard. She didn't mind me growing it for my friend, but she doesn't want me to keep it. What can I do. I gave my promise?”
His response: “As you might guess, I am aware of your problem. I heard rumors that the principal involved here might, himself, be contemplating at least a down-sizing of the beard. And, no one would expect you to retain your beard in those circumstances. So I think people will understand. I will.”
After chatting on other matters, including a Senator who turned against Bork, I asked, “Bob, why don't you come have a drink with me and Dan? We've still got a ways to go on this bottle of Irish whiskey.”
It was not the first time I'd ever used his first name, but it felt easier than in the past.
He answered, “Hmmm. Your offer is of some interest. What are you drinking, Bushmill or Jameson?”
I hollered at Casey for instructions, then answered, “Dan says we're drinking Jameson, that's what we've got.”
Bork answered, “No. If it was Bushmill I'd come, but I just sat down with a good detective novel and
I'm not going to get dressed to go back out just for Jameson.”
After I relayed his words, Casey, my fellow Catholic, declared in a loud voice, “What's a good man like you doing drinking that Prod whiskey?” (Prod in Irish Catholic parlance = “Protestant”)
Bork chuckled again, and there was a pause in the conversation. “I worked so hard,” I told him.
He answered, “I know you did, Pat, I know you did.”
So I answered, “We'll have that drink another time. Enjoy the book.”
A few days later, I bought a bottle of Bushmill, and put it behind the bar at the Joseph Story Society, sending word to his secretary that it would be waiting, when the time was right.
Bob Bork is wrong about Jameson, but he's still the greatest man I've ever known.
NOTE: McGuigan is the author of “Ninth Justice: The Fight for Bork” (Free Congress/University Press of America, 1990) and editor of “The Judges War” (Free Congress Foundation, 1987).