Supreme Court nominee Robert Bork testifies before the Senate Judiciary Committee on the first day of his confirmation hearings, September 16, 1987.
Robert Bork, the legal scholar and former federal appellate judge whose nomination to the Supreme Court was defeated by the Senate in 1987, passed away today at the age of 85. R.I.P.
Subsequent to his failed nomination, Bork took on the mantle of a conservative martyr, someone whose allegedly unfair treatment at the hand of Democrats led to a new area of political incivility. Predictably, in their remembrances a number of conservative writers—including Roger Kimball, Ann Althouse, and John Podhoretz—have focused on the tough speech that Senator Ted Kennedy gave after Bork's nomination was announced. If you look carefully at all the outrage, however, you'll notice a funny thing: None of them decries a single claim made by Kennedy as inaccurate. There's a good reason for that: Kennedy's opposition was based on Bork's public record. Bork did publicly denounce the Civil Rights Act as not merely unconstitutional but based on a principle of "unsurpassed ugliness." He did advocate for an extremely cramped interpretation of most civil liberties. He did believe that the Constitution provided no protection for a right to privacy. Republicans might have preferred that Kennedy not outline the consequences of these beliefs, but there's no reason for Democrats to abjure accurate statements merely because they're put in stark enough terms to be politically effective.
Bork was also famous for being one of the most prominent advocates of "originalism," the idea that the Constitution should be interpreted in light of how its provisions were understood at the time of their enactment. But as scholars such as Bruce Ackerman and Ronald Dworkin have demonstrated in exhaustive detail, Bork's originalism was for the most part intellectually shallow and politically motivated. While Bork was—with the possible exception of Antonin Scalia—the most famous originalist, he had no historical training, and his major scholarly work exemplified the ahistorical formal theory of the Chicago school in which he was trained. Not surprisingly, then, his claims about constitutional controversies such as the meaning of the Fourteenth Amendment in his book on constitutional theory consists of little more than bare assertions that happen to square nicely with conservative policy preferences. Conservative originalism has been very successful as a public-relations technique, but its intellectual accomplishments have been significantly more modest.
Nonetheless, in large measure because of Bork's advocacy, conservative judges—including two who did make it to the Supreme Court, Antonin Scalia and Clarence Thomas—have by and large defined themselves as originalists. Admittedly, how much this has influenced the actual content of conservative jurisprudence is unclear. Bork first announced his originalist method in a 1971 law review article about the First Amendment, and while the methods he used have been influential on the right, his narrow interpretation of the First Amendment has not. Bork had been the dream candidate of conservatives before Reagan nominated him—Kennedy was ready to respond for a reason—and this influence has only grown after his defeat. In this sense, the new group of Republican appointees to the federal courts are (for better or worse) carrying on his legacy.
"Borking" has become a conservative insult, shorthand to a political smear job. But the failure of the Bork nomination was anything but; it was an important moment that, among other things, saved Roe v. Wade from almost certainly being overturned. It says something about Bork's constitutional vision that accurately restating his public views has become synonymous with the dirtiest of dirty tricks.
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