We’re still paying the price for the Borking of Robert Bork

Then came the Borking of Clarence Thomas, with a similarly sad result: The transformation of another convivial conservative appellate judge, who had a record of friendly interactions with liberal colleagues on the U.S. Court of Appeals for the D.C. Circuit, into an angry partisan, determined to seek ideological revenge for decades to come. And then both parties wised up and decided, for strategic reasons, to avoid future Borkable nominees. That resulted in nominees without a significant paper trail on controversial constitutional questions—nominees like John Roberts and Samuel Alito and Sonia Sotomayor and Elena Kagan, all of whom seem to have measured every word since law school in an eerily prescient effort to avoid being Borked. And despite their professional distinction, these justices lacked the clearly identifiable judicial philosophy that allowed Bork not only to galvanize the right but also to transform America’s legal debate so that liberals as well as conservatives now have to take seriously arguments about the original understanding of the Constitution. Next to Antonin Scalia, Bork did more to put constitutional text and history front and center than any other judge in America. So if Learned Hand was one of the most influential progressive judges never to sit on the Supreme Court, Robert Bork was one of the most influential conservatives never to do so.

What will the future bring? More opaque, un-Borkable nominees, more polarization, more unfilled judicial vacancies (unless the filibuster gets exploded, leaving even more partisanship in its wake). And less of the values that Bork represented at Yale: bipartisan debate, intellectual experimentation, and a willingness to cross ideological lines.