Curious that the person perhaps most responsible for politicising the US supreme court, at least in the last fifty years, never actually took his seat on the court. Such was the significance of Robert Bork, who died this week at the age of 85.
Bork’s nomination to the court by Ronald Reagan in 1987 set off a bitter battle in the Senate over his judicial philosophy, and he was ultimately rejected by 58 to 42 (current vice-president Joe Biden was chairman of the Senate judiciary committee at the time). Ever since, nominees have been more closely scrutinised and presidents have looked for prospective justices with a less obvious paper trail.
Oceans of crocodile tears have been shed about this result. Jeffrey Rosen in the New Republic tells us that “Bork’s record was distorted beyond recognition” in a process that “was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones.” Andrew Sullivan claims that “the smear campaign from Bork’s opponents dwarfed everything else”.
But it’s hard to see what the alternative was. Rosen and Sullivan both agree that Bork would have been a bad justice, and the only way he was going to be stopped was by a political campaign. It wasn’t pretty, but I’m not convinced it was unfair.
Read again, if only for the pleasure of it, Teddy Kennedy’s famous indictment of Bork:
Robert Bork’s America 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, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the government, and the doors of the federal courts would be shut on the fingers of millions of citizens …
It’s powerful rhetoric. But it’s also fundamentally true: each point of the charge represents an issue on which Bork had argued against the courts’ power to rein in state or federal governments.
Yes, Bork was a distinguished jurist. His views, however, were way outside the constitutional mainstream. He failed to appreciate the role of the courts as safeguards of individual rights against the state, famously comparing the ninth amendment (one of the sources of the decision in Roe v Wade, which Bork opposed) to an “ink blot”.
When they were in power, Republicans rather liked the idea of the courts deferring to the executive. They have been less keen on it in opposition, so some of Bork’s views have become less fashionable. But there were limits to his consistency as well: he supported the hyper-interventionist supreme court decision of Bush v Gore that stopped the Florida recount in 2000 that would have made Al Gore president.
Rosen suggests that it was Bork’s Senate defeat that turned him into a bitter, partisan conservative, and there may be some truth in that. Yet Antonin Scalia, who was confirmed without opposition, has become about as partisan a justice as one could imagine; there’s no particular reason to doubt that Bork would have gone the same way.
Instead he made a comfortable living writing lurid tracts for right-wing think-tanks, railing against his real and supposed enemies. On one view it was a waste of a brilliant mind, but in the end it was probably a role he was happier with.