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Robert Bork, 1927-2012

Robert Bork died today at the age of 85, having had the distinction of becoming one of the most famous figures in the realm of public policy of the 20th century in part because of the unprecedented effort to destroy his reputation following his nomination for a seat on the Supreme Court in 1987.

Bob’s sin was believing that the job of a constitutional jurist was to analyze constitutional cases in light of the specific language of the Constitution and the intent and ideas of those who wrote it. For believing this—for believing in the classical notion, which defines the very act of interpretative scholarship, that a work of governing philosophy and practice has intrinsic meaning and not just the meaning we wish to assign to it—he was disgustingly slandered.

Perhaps the most important legal scholar of his day, whose work on matters ranging from anti-trust to the complexities of privacy laws was both accessible and deeply considered, Bork was exactly the sort of choice serious-minded people should have welcomed. The Court had been in large measure the province of lightweights who were considered politically safe or somehow controllable, men who possessed no intellectual compass and were either the captives of their clerks or of the conventional wisdom. His nomination did the Court credit. It was an effort to elevate it.

But no. Nothing like the campaign to deny Bork the Supreme Court had ever been seen before. It was a systematic campaign of personal destruction undertaken by liberal interest groups who had come to see the growing conservatism of the Reagan-era judiciary as an existential threat to them. Only a year earlier, Antonin Scalia had been affirmed by a 98-0 vote in the Senate, but in the interim, Democrats had taken hold of the body in the 1986 elections and the stage was set for a new era of personal destruction in the pursuit of a supposedly higher good.

Bob Bork became a sacrificial lamb for, among others, Ted Kennedy, who libeled him with the preposterous allegation that Bork wanted to return America to the days in which women got abortions with coat hangers. Why? For the crime of arguing, honestly and correctly, that Roe v. Wade, which somehow found  a right to abortion in the language of a document that never mentioned abortion, was a travesty.

To know Bob Bork was to be astonished at the level of invective he generated. He was a shy, abrupt, slyly witty, and intensely thoughtful man. He had no airs. You asked him a question, he answered it. You asked him about his views of cases like Griswold v. Connecticut, involving the privacy of sexual acts in the bedroom, and he said the case had been wrongly decided not because there should be no privacy but because he could locate no right to privacy in the Constitution. This was, he said, a matter for legislatures, not courts.

What he said was true; that he said it was impolitic and helped his enemies. What they did to him was unconscionable. He did not let it destroy him. He had lived through worse—the long death at a tragically young age of his first wife, Claire.  He went on to write bestselling books with highly serious intent, living life as a public intellectual, finding contentment in his second marriage to Mary Ellen.

But he was not serene in the face of what had happened. Serenity was not in his nature in any case. Years later I was sitting with him at some dinner when someone asked him a question about Kennedy. He told a story about his testimony and about having to address Kennedy, who had spoken in such vile fashion about him, with deference and respect. Then he puckered up his lips like a fish and simulated swimming like a fish in the waters of Chappaquiddick.

Almost a quarter century after his “Borking,” the judicial transformation his character assassination was designed to help prevent has happened anyway. In a brilliant article we published a few months ago, called “Bork Won,” Adam J. White lays out the enduring legacy of this remarkable and complicated man, who was left on the far shore but got to watch as the people who followed him crossed the river and took his journey forward.

Here are three articles he wrote for COMMENTARY: “Against the Independent Counsel,” published in 1993; “What to Do About the First Amendment,” in 1995; and “Civil Liberties after 9/11,” in 2003.


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