RIP, Robert Bork

posted at 10:31 am on December 19, 2012 by Ed Morrissey

Perhaps no jurist has had as much impact in our lifetimes as Robert Bork without sitting on the Supreme Court — and perhaps no jurist has been as unfairly maligned.  After a life of public service, the US Senate under the direction of Ted Kennedy conducted a character assassination on Bork that denied him a seat on the high court and turned his surname into a synonym for smear campaigns.  Bork’s reputation outshone those of his critics in the end, however, and Bork remained influential on a new generation of legal thought.

Judge Bork passed away today at the age of 85:

Family members said Bork, 85, died early Wednesday morning. He had a history of heart problems and chronic obstructive pulmonary disease, a lung condition.

His funeral is scheduled for Saturday. …

President Ronald Regan nominated Bork to the U.S. Supreme Court in 1987. In a 58-to-42 vote, the Senate rejected his nomination — it was by one of the widest margins in U.S. history.

Republicans have long said his defeat was a completely partisan move and have said Bork was one of the greatest conservative figures in history.

Steven Hayward remembers the 1987 confirmation fight, and the irony of the Left’s attack on him today:

Bork’s nomination brought out the highest hypocrisy of the Left.  Take the current Vice President, Wide-Mouth Biden, as an example.  When President Carter nominated the liberal Abner Mikva to an appeals court in 1979, Biden rebuffed conservative complaints about Mikva’s activist liberal philosophy: “I think that the advice and consent responsibility of the Senate does not permit us to deprive the President of the United States from being able to appoint that person or persons who have a particular point of view unless it can be shown that their temperament does not fit the job.”  Ted Kennedy said on the Senate floor: “If strong political views were a disqualifying factor from serving on the federal bench, then all of us here today—and every man and women who has ever served in either house of Congress, or held political office—would be disqualified.”  Kennedy had made a similar argument in 1967 in defense of Thurgood Marshall’s appointment to the Supreme Court.  That all went out the window with Bork, of course.

Bork’s death today might well represent his ultimate revenge on the Left: had he been confirmed to the Court, his passing today (there’s no special reason to think he would have retired) would have opened up an appointment for President Obama to name a new Justice and tip the Court to the Left.  Instead, the man Reagan put in the seat Bork would have filled, Anthony Kennedy, will carry on, determined, I am reliably told, to serve at least until Obama is gone in part because he was offended by Obama’s demagogic attack on the Citizens United decision that Kennedy wrote.

Roger Kimball goes into more detail:

The vicious campaign waged against Judge Bork set a new low—possibly never exceeded—in the exhibition of unbridled leftist venom, indeed hate.  Reporters combed through the Borks trash hoping to find comprising tidbits; they inspected his movie rentals, and were disgusted to find the films of John Wayne liberally represented.  So hysterical was the campaign against Judge Bork that a new transitive verb entered our political vocabulary: “To Bork,” scruple at nothing in order to discredit and defeat a political figure. Monsieur Guillotine gave his name to that means of execution; “progressives,” those leftists haters of America who have so disfigured our national life since the 1960s, gave us the this new form of character assassination.  The so-called “Lion of the Senate,” Ted Kennedy, surely one of the most despicable men ever to hold high public office in the United States (yes, that’s saying something), stood on the Senate floor and emitted a serious of calumnious  lies designed not simply to prevent Judge Bork from being appointed to the Supreme Court but to soil his character irretrievably. “Robert Bork’s America,” quoth Kennedy,

 is a land in which women would be forced into back-alley abortions, blacks would sit down at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of democracy.

A breathtaking congeries of falsehoods that, were they not protected by the prerogatives of senatorial privilege, would have taken a conspicuous place in the annals of malicious slander and character assassination. In The Tempting of America, Judge Bork recounts his incredulity at this tissue of malign fabrication. “It had simply never occurred to me that anybody could misrepresent my career and views as Kennedy did.” At the time, he notes, many people thought that Kennedy had blundered by emitting so flagrant, and flagrantly untrue, an attack. They were wrong. His “calculated personal assault, . . . more violent than any against a judicial nominee in our country’s history,” did the job (with a little help from Joe Bidenand Arlen Specter). Not only was Kennedy instrumental in preventing a great jurist from taking his place on the Supreme Court, he also contributed immeasurably to the cheapening of American political discourse.

In a way, Robert Bork had the last laugh.  Ted Kennedy went to his grave a rancid, lumbering, pathetic laughing stock. Bork went from intellectual triumph to intellectual triumph, contributing now-classic studies to the library of legal understanding and penning two of the most important works of social criticism of the last several decades, the aforementioned Tempting of America and Slouching Toward Gomorrah, wild bestsellers both. I am proud to say that this spring Encounter Books will be publishing a memoir by Judge Bork called Saving Justice: Watergate,. The Saturday Night Massacre, and Other  Adventures of a Solicitor General.

The Federalist Society put together a must-view tribute to Bork in April of last year, while Bork was still around to appreciate it.  It’s a worthy obituary for today.


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