Robert Bork and Ronald Reagan

I always liked both Robert Bork and Ronald Reagan. They had a lot in common. Lee Edwards noted concerning Bork and Reagan:

Reagan’s most dramatic defeat came in 1987 when he nominated Judge Robert Bork to the Supreme Court.[xli] Bork’s confirmation became an ugly battle against liberal organizations like the American Civil Liberties Union, the AFL-CIO, and People for the American Way. One analyst put the cost of the anti-Bork media campaign at $15 million.[xlii]

Although the American Bar Association rated Bork “well qualified,” the ACLU called him “unfit.” Senator Edward Kennedy, who led the Senate fight against the conservative jurist, charged that Bork’s nomination would lead to an America where women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police would break down citizens’ doors in midnight raids, school children would not be taught about evolution, writers and authors could be censored at the whim of government and the doors of the federal courts would be shut on the fingers of millions of citizens.[xliii]

Not since 1964 and LBJ’s Anti-Campaign against Barry Goldwater had a conservative been subjected to so fierce and unfair an attack. The Boston Globe’s Supreme Court correspondent wrote that Kennedy “shamelessly twisted Bork’s world view.”[xliv]

Bork’s nomination dominated the political agenda in the late summer and early fall of 1987. His five days of testimony before the Senate Judiciary Committee were nationally televised. Former President Gerald Ford personally introduced the nominee to the committee. Former President Jimmy Carter then sent a letter stating his opposition. One hundred and ten witnesses appeared for and against Bork during two weeks of hearings. Finally, the Democrat-controlled Judiciary Committee refused by a vote of 9-5 to recommend Bork’s nomination. The Senate then voted 58-42 against confirmation: six moderate Republicans broke party ranks and voted with fifty-two Democrats against Bork while two Democrats voted for Bork. Liberals loudly celebrated their victory, but soon after, Reagan nominated and won confirmation of a lower-keyed conservative, Anthony M. Kennedy.

Several factors combined to deny Robert Bork a seat on the Supreme Court: a strongly partisan Democratic Senate, a president weakened by the Iran-contra affair, a White House that did not launch its nomination campaign early enough, a liberal opposition that was better organized and financed than the conservative support, and a nominee who was often contentious and contradictory in his testimony. But ultimately Bork was rejected because of his view that the Constitution was “the Founders’ Constitution” bound by original intent and not a “living document” susceptible to the interpretation of current justices.[xlv] Today, however, Bork’s traditional view of the Constitution is increasingly articulated by a majority of the Supreme Court.

Although Bork’s defeat was a major setback for the Reagan administration, it could not negate Reagan’s significant legal legacy of a conservative federal judiciary from top to bottom. “Reagan’s success lies not simply in quantity but quality,” concluded conservative author Terry Eastland, who worked in the administration’s Justice department. Indeed, Reagan’s judges, according to biographer Lou Cannon, “ranked above [those of] Carter, Ford, Nixon and Johnson.”[xlvi]

Too bad the liberals in the Senate denied him the chance to serve on the Supreme Court.

Biden praised Bork earlier then turned against him when he was nominated.

Bork had been associated with the Republicans for a long time.

December 19, 2012 11:19AM

Passing of a Conservative Legal Giant

While libertarians have many disagreements with Robert Bork, it’s undeniable that the man had an outsized impact on law and legal policy that included fomenting the pushback against the progressive excesses of the Warren Court.  Best known to the public as the prickly arch-conservative who (illegally) fired the special Watergate prosecutor and was rejected for the Supreme Court—after a nomination that set the bitter stage for modern confirmation battles—Bork’s enduring legacy lies elsewhere.  His work on antitrust law, in line with the nascent law-and-economics movement, transformed the field into one focused on consumer welfare rather than government management of industry and continues to influence legal doctrine and jurisprudence.  His pioneering development of originalism as the one coherent method of constitutional interpretation led to a revival of the once-quaint idea that constitutional text, structure, and history matter more than the subjective policy views of particular judges.

Bork was certainly, inexcusably wrong in emphasizing judicial restraint over getting the law right—John Roberts’s vote in the Obamacare case was a fruit of that poisonous tree—and in reading unenumerated natural rights out of the Constitution (famously likening the Ninth Amendment to “an ink blot”).  He also misunderstood the “Madisonian dilemma” of judges making unpopular rulings, positing that majorities are entitled to rule in wide swaths of life, with limited exceptions for individual freedom—that’s exactly backwards!  And he, like Justice Scalia, too easily made peace with the New Deal’s abandonment of the doctrine of enumerated powers, which resulted in the government getting the benefit of the doubt not much less than from liberal jurists.  In the end, however, we should remember him as an intellectual powerhouse who nearly single-handedly fought the progressive hijacking of the law until better reinforcements could arrive.  R.I.P.


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