Judge Robert Bork, former Supreme Court nominee, legal scholar, and the conservative movement’s champion of originalism, died early this morning after a long battle with heart and pulmonary complications. His family reports that the funeral will be held on Saturday.
Bork endured one of the most vicious, coordinated attacks from the Left during his Reagan-era SCOTUS confirmation fight. How different might things have been in the era of blogs, Twitter, talk radio, and Fox News. The monopoly of the liberal narrative-setters helped doom Bork. But in the end, as Adam White wrote recently in Commentary, “Bork Won.”
The changed course of future Supreme Court nominations was the Bork nomination’s most obvious legacy, but that was not its only legacy. Indeed, the Bork nomination’s most significant impact may be not the manner in which Supreme Court justices are selected, but rather the content of constitutional law itself. For while Bork himself was pilloried for embracing an originalist approach to constitutional law, his nomination’s failure laid the basis for originalism’s eventual success. The Bork hearings galvanized conservatives and challenged them to refine originalism to achieve greater political effectiveness.
Bork himself took the first significant step by writing The Tempting of America, the first substantial book-length defense of originalism. In it he presented originalism as a matter of theory and then, in recounting the confirmation fight, responded to the charges levied against him by senators and liberal activists. For example, Bork attempted to resolve alleged conflicts between the originalist theory and Brown v. Board of Education, which relied upon sociological arguments utterly foreign to originalism. “The purpose that brought the fourteenth amendment into being,” Bork wrote, “was equality before the law, and equality, not separation [i.e., separate-but-equal], was written into the [Constitution’s] text.”
More important, Bork’s defense of originalism would be followed by the comprehensive efforts of scholars such as Michael McConnell (who developed a lengthy defense of “Originalism and the Desegregation Decisions”), Randy Barnett (on the Commerce Clause), John Yoo (on the president’s war powers), and myriad other conservative proponents of originalism.
Even more fundamentally, the Bork hearings forced originalists to reconsider, or at least further develop, first principles. Where Bork had defended originalism primarily as an inquiry into the Founding Fathers’ “intentions”—a seemingly subjective inquiry, irrevocably tied to the Framers’ politics and prejudices—conservatives eventually shifted their focus away from “intentions” and toward the more objective “original public meaning” of the constitutional text.
The Bork nomination had profound organizational effects as well…
Roger Kimball adds:
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 aofremention Tempting of America and Slouching Toward Gemorrah, 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.