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Yet More Bork

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1968 Views

My bottom line: “It says something about Bork’s constitutional vision that accurately restating his public views has become synonymous with the dirtiest of dirty tricks.”   Along similar lines, Jeffrey Toobin gets right to the point: “Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century.”

To be fair and balanced, Jeffrey Rosen says that we should have left Robert Bork alllonnnnne:

But even from the sidelines, as I celebrated Bork’s defeat, I remember feeling that the nominee was being treated unfairly. Senator Edward Kennedy set the tone with a demagogic attack. “Robert Bork’s America,” he said, “is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans.”

Bork’s record was distorted beyond recognition, and his name was transformed from a noun into a verb. The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking. And it had obvious costs for Bork.

Before the hearings, Robert Bork had been renowned at Yale Law School, where he taught for nearly two decades, not only for his influence on antitrust and constitutional law, but for his ideological open-mindedness: many students of his era fondly remember the seminar he co-taught with his closest friend on the faculty, the liberal constitutional scholar (and TNR legal editor) Alexander Bickel, which featured affectionate bipartisan debates. After Bickel criticized his conservative jurisprudence in one class, Bork replied, “You’ll notice that my colleague’s elegant theories of jurisprudence are a cross between Edmund Burke and Fiddler on the Roof.” TNR was said to be Bork’s favorite journal at the time, and in 1968 he wrote a piece for this magazine, “Why I Am for Nixon,” praising the Republican presidential candidate as the true heir of classical liberalism.

After the hearings, he would become, in print at least, something of the caricature of legal conservatism that Kennedy had painted. But he remained friendly and convivial in private: Whenever I ran into him and his devoted wife, Mary Ellen, over the years at holiday sing-alongs, he loved to discuss his old friend Bickel over scotch. Although the hearings had left Bork professionally embittered, he remained personally gracious.

Just like the various conservative hacks I discuss in the Prospect piece, he decries Kennedy for “distorting” Bork’s record without bothering to elaborate a single specific claim that is inaccurate, which speaks for itself. (Previously, he’s called it an “ad hominem” attack although it was entirely substantive — again, if it’s allegedly a grave personal insult to describe his record, what does that tell you?) The idea that he was once “ideologically flexible” but only became a reactionary after being rejected — now that’s a distortion of the historical record. Sure, his bitterness and resentment increased, and yes Slouching Toward Gomorrah is not merely reactionary but (unlike The Antitrust Paradox) completely unserious. But he had an unbroken record of odious political and constitutional views before 1987 — he opposed the Civil Rights Act in Rosen’s very publication more than 20 years before mean Ted Kennedy pointed it out (a fact Rosen conveniently omits.) His ideological “flexibility” consisted of an evolution from defending reactionary outcomes with Chicago-style formal theory to defending reactionary outcomes with not-even-law-office history.

But what I most disagree with is the idea that being “convivial” is more important than the fact that if Bork “instead of Anthony Kennedy, had been the swing vote between 1987 and 2012, America would indeed have been a more illiberal place.” Admittedly, this is an advance for Rosen — in the past, he’s denied that Bork’s confirmation would have led to the overruling of Roe v. Wade, for example, by mischaracterizing the historical record. And as Paul says, that’s just the beginning of what confirming Bork would have meant.  This order of priorities is self-refuting — the effect of his decisions is what matters, not whether he’s a nice guy in private. Defeating Bork led to better constitutional law and gave Bork more time to reminisce with Rosen about Alex Bickel over scotches. Win-win!

…I forgot to mention this, but also compare and contrast Rosen’s treatment of Bork with his treatment of Sonia Sotomayor.   Let’s just say that you couldn’t swap anecdotes about Herbert Wechsler over martinis at the right kind of club with Sotomayor, and really what could be more important?

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