The Bork I knew was brilliant, but he was far right even of the conservative mainstream
With news of Robert Bork's death on Wednesday, I didn't think first of his failed nomination to the U.S. Supreme Court. Instead, I thought back to my time as a student in his class on constitutional law.
By the time I took my seat in the fall of 1980, Bork was already well known. During Watergate, while serving as U.S. solicitor general, Bork had fired special prosecutor Archibald Cox when President Nixon's attorney general and deputy attorney general had refused to do so. This was the so-called Saturday Night Massacre.
Bork was also perhaps the most visible proponent of the "original intent" school of constitutional interpretation. According to Bork, the Constitution could be understood only in the way that those who wrote the words meant them at the time. There was no flexibility for changed circumstances over the centuries, except through amendment. Thus, constitutional protection for the rights of women, privacy protections for personal decisions on birth control or abortion, the one-person-one-vote rule, even the 1964 Civil Rights Act and its regulation of interstate commerce on a non-discriminatory basis -- all of these would be out under the Bork philosophy.
In the classroom, we could all see that Bork was an incredibly smart man. His mind was powerful, supple and insightful. He ran rings around all of us without any effort at all. Lazy, fuzzy or unexamined thinking got students into trouble quickly. There was also little humor or humility in his approach; he was a guy with THE ANSWERS, and he made sure you knew it.
The class forced me to re-examine everything I believed, and everything that generations of justices had said in their opinions. Now, after more than 20 years in front of law school classrooms myself, I know that this was the point. But I often found myself recoiling from what I considered a harsh, almost Hobbesian world view. In Bork's America, a society I did not recognize and had not lived in would have been preserved in amber, and all of us would have to live in it.
To his credit, Bork was not shy about these views; on the contrary, he wrote and spoke them frankly and frequently. Whatever one thought of what he said, it was clear that he meant what he said.
Therefore it was no surprise that Bork's nomination to the Supreme Court attracted opposition fiercer than anyone had seen in the modern era. His legal writings and speeches were mined for extreme views on matters that many Americans had come to take for granted by the 1980s, and critics found examples aplenty. His chance to be a justice -- to enjoy what he told the Senate Judiciary Committee would be "an intellectual feast" -- went down to defeat 58-42.
I was not surprised. Quite aside from his views, which were far from the mainstream of even conservative legal thought, he was the same person in front of the Judiciary Committee as he had been in the classroom: an intellectual titan for certain, but dry, harsh, dismissive of lesser minds and unmoved by human concerns.
I did not know the man personally; by all accounts, he had a warm and human side. But no senator saw it, and his manner played right into the efforts to define him as a cold-eyed elitist.
Many commentators say that the widespread characterization of Bork's legal philosophy was unfair -- a cartoon of what he really believed.
I disagree. These were Bork's real views, expressed by him; no one had to make the stuff up or take it out of context. It was all there, in his work. Nevertheless, the confirmation battle spawned a new word: to "bork" a nominee came to mean to oppose the person by unjustly distorting his or her record.
That description may hold true for some nominees, but ironically, not for Bork himself. As legal commentator Jeffrey Toobin has put it, "Bork was 'borked' simply by being confronted with his own views -- which would have undone many of the great constitutional landmarks in recent American history."
All of this is well known. But perhaps more significant is the fact that the person who eventually got the Supreme Court seat that Bork did not was Anthony Kennedy.
Justice Kennedy has often been the court's swing vote, sometimes taking it in unabashedly liberal directions. Just a few examples: Lawrence v. Texas found bans on private homosexual activity unconstitutional; Atkins v. Virginia found the execution of the mentally ill unconstitutional; Roper v. Simmons held executions of persons who were under 18 at the time of the crime unconstitutional; Boumediene v. Bush found that habeas corpus applied to detainees at Guantanamo Bay and that the Military Commissions Act was an unconstitutional suspension of the right to habeas corpus; and Texas v. Johnson found that the First Amendment protected the burning of the American flag.
One simply cannot imagine Bork agreeing with any of these decisions. Of course, Justice Kennedy has sometimes swung the other way, but the cases in which he has done so would very likely have come out the same way had Bork been confirmed. We know this for certain: Robert Bork would have taken the Supreme Court in only one direction -- a much more conservative one. We would be looking at a different America now, in some fundamental and important ways.
First Published December 21, 2012 12:00 am