Had Robert H. Bork never been nominated to the nation’s highest court, he would still have been an important figure in American law. As a professor at Yale Law School; as a scholar who blazed a trail to the reform of antitrust jurisprudence and made important contributions to the emergence of originalism in constitutional law; as a highly regarded solicitor general who stepped in to be acting attorney general at a moment of political crisis; and as an appellate judge who improved the D.C. Circuit Court of Appeals by his presence on it, Bork made his mark on the theory and practice of American law before Ronald Reagan ever sent the Senate his nomination to be an associate justice of the Supreme Court.
But it was Reagan’s nomination of Bork, in the Constitution’s bicentennial year of 1987, that vaulted him to national prominence. One year earlier, another well-known originalist appellate judge and scholar, Antonin Scalia, had been confirmed by the Senate 98–0. But now the seat in question was the one being vacated by “swing justice” Lewis F. Powell, and the Democrats had regained control of the Senate in the 1986 midterm elections. And so the knives came out, in an unprecedented campaign of slander, causing the verb “bork” to enter our lexicon as a synonym for “calumniate.” The late senator Edward Kennedy’s gusher of lies about “Robert Bork’s America” is a notorious part of this story. Less well remembered is that the current vice president of the United States, then-senator Joe Biden, chaired the Judiciary Committee hearings that converted a distinguished public servant and scholar into a villain who could not be trusted near the Constitution. To its shame, on October 23, 1987, the Senate defeated Bork’s nomination 58–42.
Judge Bork was the twelfth Supreme Court nominee in history to be rejected by a vote of the Senate. But he was the first and only justice to be rejected because he promised to practice an apolitical jurisprudence that takes its bearing from neutral principles of judging; because his foes and friends alike understood that he would be both upright in his devotion to those principles and influential as a spokesman and practitioner of them. In short, he was the first nominee to the Supreme Court to be rejected because he took the rule of law too seriously.
Bork’s was also the first nomination to the Court in which the politics of abortion truly poisoned the process of selecting our highest judges. It is no exaggeration to say that, but for the Court’s disastrous decision in Roe v. Wade, Bork’s confirmation would have been smooth sailing. But the evident threat of originalist jurisprudence to the preservation of the abortion license, so treasured by the Left and so obviously the product of judicial usurpation, made the defeat of his nomination an absolute imperative to the Bidens and Kennedys of the Democratic party.
Lesser men might have withdrawn from the public spotlight, feeling that such a defeat was ignominious. Not Robert Bork. Stepping down from the Court of Appeals, he set about writing a combination memoir of the confirmation battle and defense of originalist jurisprudence. The result was The Tempting of America: The Political Seduction of the Law, a runaway bestseller in 1990, and a landmark in the emergence of originalism as the intellectually most respectable approach to the interpretation of the Constitution. More books followed, and articles on various subjects legal, political, and cultural. Readers of National Review and other journals of opinion came to know the muscular prose, the razor-sharp reasoning, and the uncompromisingly principled character of Robert Bork through his writings of the past quarter century.
The loss of his deserved place on the Supreme Court was a bitter defeat for conservatism and for constitutionalism. But the loss was offset, if only in part, by the gain of his sparkling contribution as a private citizen to our national conversations on judging, on the rule of law, and on our country’s moral character. R.I.P.
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Paul Olivett, Associate Publisher
National Review, Inc.