Citizen Rauh: An American Liberal's Life in Law and Politics

19. Saving the Court

chapter nineteen SAVING THE COURT Why should we hide? Why are you ashamed to be called liberals? —joe rauh Paper Trail Judge Robert Bork probably saved Joe Rauh’s life. President Reagan’s nomination of the former Yale law professor to the Supreme Court in the summer of 1987 rekindled Rauh’s spirit after a brush with death and gave him enthusiasm for another con‹rmation battle. This one surpassed in intensity those he had earlier fought against Haynsworth, Carswell, Rehnquist, and Scalia. Now, slowed by illness, the aging lion of legal liberalism accepted a more modest role, one he continued to play in the ‹nal Court struggles of the Reagan -Bush years. Early in 1987, his hip weakened by many years of competition on the tennis courts and softball ‹elds, Rauh checked into Johns Hopkins Medical Center for a replacement. The operation went well, but three days after surgery, he suffered a heart attack. Faced with internal bleeding, he underwent an additional operation that took a heavy physical toll. “I nearly croaked,” he joked to friends. Not until May did he ‹nd the stamina to travel and accept accolades at a Common Cause dinner in Washington. When Herman Benson, his old ally from the union democracy wars, saw him a year later in Los Angeles, he noted that Rauh “has the old crusading spirit. But physically he is obviously weakened by the long ordeal he suffered last year. He walks painfully with a cane and gets tired, but when he gets up to the platform, the spirit is still there.”1 Robert Bork, with his scraggly red beard and rumpled appearance, 239 looked every bit the part of a professor, his profession before joining the Nixon administration as solicitor general fourteen months before the president resigned. A graduate of the University of Chicago and its law school, Bork’s intellectual journey had taken him from youthful support for the New Deal (he voted for Adlai Stevenson in 1952), through the free-market libertarianism of the Chicago school of economics, to the extremes of cultural conservatism in the 1980s. In 1963, for example, he condemned Kennedy’s proposed civil rights bill on grounds that “having the state coerce you into more righteous paths . . . is itself a principle of unsurpassed ugliness.”2 He attacked the Court’s 1948 decision outlawing restrictive racial covenants as lacking “neutral principles” because it “converts an amendment . . . aimed only at governmental discrimination into a sweeping prohibition of private discrimination. There is no warrant anywhere for that conversion.”3 Bork also denounced Supreme Court decisions striking down the poll tax and sustaining a congressional ban on literacy tests as “very bad, indeed pernicious, constitutional law.”4 He ridiculed Griswold v. Connecticut, which af‹rmed a constitutional right to privacy and the right of married couples to use contraceptives, as “an unprincipled decision.”5 Roe v. Wade drew his ‹re as “an unconstitutional decision , a serious and wholly unjusti‹able judicial usurpation of state legislative authority.”6 “Saturday Night Massacre” Bork’s role during the Watergate crisis also raised serious questions concerning his candor and judgment as solicitor general. On October 20, 1973, after special prosecutor Archibald Cox won an appeals court ruling ordering President Nixon to turn over to his of‹ce potentially incriminating tape recordings of White House conversations, the president instructed attorney general Elliott Richardson to ‹re Cox. When Richardson refused and resigned, Nixon next ordered William Ruckelshaus, the deputy attorney general, to oust the special prosecutor. He, too, refused and resigned, but Bork, third in command at Justice, carried out the president’s orders and ‹red Cox, an event soon labeled the “Saturday Night Massacre.” Bork insisted at his con‹rmation hearings for the appeals court that he intended for the Watergate investigation to continue without delay, but he did not appoint a new special prosecutor, Leon Jaworski, until early November following intense criticism of his inaction in Congress and the press. Former members of the special prosecutor’s of‹ce, especially Henry Ruth, questioned Bork’s version of events. They noted he had long opposed 240 citizen rauh the special prosecutor post and that the president had ordered him to ‹re Cox and also “to abolish the Of‹ce of Special Prosecutor.” On October 23 Bork carried out Nixon’s order by rescinding the regulation that had created Cox’s post, and he then ordered its functions transferred to the Criminal...