The country dodged a bullet in 1987 when Robert Bork, nominated by President Ronald Reagan for a seat on the Supreme Court, lost his Senate confirmation by a vote of 58-42. If he had been confirmed, he would have likely served on the Court for the past 25 years, until his death yesterday at the age of 85.
The right’s eulogies have begun—the National Review has called him “one of the best legal minds that America has ever produced, probably the best in the postwar world.” That’s hyperbole, but he was indeed no slouch in the smarts department. He did important scholarly work in anti-trust law, and many point to him as the most persuasive advocate of interpreting the Constitution according to its “original intent.” (Antonin Scalia will surely be annoyed when he reads that.)
I have no desire to speak ill of him as a man. I will assume that he loved his family, gave candy to children on Halloween, and rescued cats stranded in trees. But we are fortunate indeed that he did not make it to the Supreme Court. We are fortunate not because he was dumb (he wasn’t) or conservative (he was). The real reason we are fortunate he never made it to the Court is that he seemed to lack a fundamental quality of a good judge: the realization that the law has massive implications for real people, and the ability to imagine oneself in another’s situation in order to measure those implications. One might call this empathy.
Bork thought Roe v Wade was a travesty, civil-rights laws were a violation of the freedom of businesses, and the Court’s imposition of the one-person-one-vote rule a judicial overreach. When Bork’s nomination failed, Reagan eventually nominated Anthony Kennedy, who has been somewhat to the left of where Bork would have been. While that nudge leftward made a difference less often than you might expect, the handful of cases in which it did were significant: Planned Parenthood v Casey, which upheld Roe v Wade; Gonzales v Raich, which halted the Rehnquist Court’s narrowing of the commerce clause; Roper v Simmons, which ended capital punishment for juveniles; and Boumediene v Bush, which subjected the Guantanamo detention camps to judicial oversight. But his conservatism is not the main reason we dodged a bullet. Conservatives come and go. Bork certainly would not have been out of the conservative mainstream on a Court providing leather-bound seats for Scalia, who compares sodomy to murder, and Clarence Thomas, who thinks minimum-wage laws are unconstitutional. Bork’s originalism might have encouraged the other two to be even more brash, but that might have made them less influential with Sandra Day O’Connor, the swing vote during the 1980s and 90s.
Honestly, it’s not his conservatism that bothered me. It’s the pompous intellectualism that made him see the job as one best performed by a detached theorist, unconnected to the reality of what the Court decides. This defect was illustrated by an exchange near the end of his confirmation hearings. One of his Senate allies, Alan Simpson of Wyoming, tossed him a softball: “Why do you want to be an Associate Justice of the United States Supreme Court?”
A nominee with any sense could use this as an opportunity to talk about the ideals of public service, the importance of liberty to the nation’s identity, and how important it is for the Supreme Court to look after those who are shut out by the political process.
That’s not where he went. Instead, he answered: “I think it would be an intellectual feast just to be there.” It was the response of an egghead, and it doomed his nomination.
If he had served, this intellectual pomposity would have made it virtually impossible for him to do the things that good judges do: maintain openness to influence and argument, question one’s own biases, and guard against overconfidence. Such intellectual qualities are important any time, but especially so when making decisions in a group as homogeneous and stodgy as the Supreme Court. (At the time of Bork’s nomination, the Court had seen only one female justice and one African-American justice in over 200 years.) In the last quarter century, when cases reached the Court asking questions about abortion, the right to die, affirmative action, free speech, and gay rights, Bork would have seen these not as cases affecting millions of Americans but as an intellectual exercise.
Since Bork’s flame-out, nominees and presidents have learned their lesson, making clear that they understand the importance of the Court’s impacts on regular Joes and Josephines. Or at least they say they do.
But Bork never learned to rise above hard-headedness. A few years after his failed nomination to the Court, he decided to resign his seat on the Court of Appeals in Washington, D.C. to take advantage of lucrative opportunities in think tanks and on the speaking circuit. As he voluntarily left his life-tenured job on the second most prestigious court in the country, he felt so oppressed that he apparently thought the situation called for a good quote from Martin Luther King, Jr.: “Free at last, free at last, Thank God Almighty, I’m free at last.”
It makes one shutter to think that someone that obtuse might have been on the Court for the last 25 years. Thank God Almighty, indeed.