When the Senate in 1987 defeated President Reagan’s nomination of Robert H. Bork for a seat on the Supreme Court, it blocked the appointment of one of the most superbly qualified individuals ever advanced for the court. Judge Bork had been a Marine, a distinguished professor at two of the nation’s finest law schools, a partner in a respected law firm, solicitor general of the United States and a judge on a leading federal appeals court. He was the father of three children, a widower remarried to a former nun. He was a widely acclaimed scholar, respected as a brilliant, penetrating thinker and a formidable advocate. In an obituary, The New York Times, one of his archest critics, acknowledged that “no one questioned his integrity or intelligence.”
None of that mattered to the 58 senators who blocked his appointment to the Supreme Court. He was savaged and then rejected in one of the sorriest chapters in American political history.
Sen. Edward M. Kennedy launched the attack within an hour of the announcement of his nomination. In a vituperative, slanderous speech, Kennedy characterized “Robert Bork’s America” as a cold, heartless, tyrannical society in which the races would be resegregated, women would be forced to resort to “back-alley abortions,” police would batter down doors in “midnight raids” and courthouse doors would be closed to “millions of Americans.”
Kennedy’s opening salvo was succeeded by a bitter, partisan, televised spectacle in which Judge Bork was maligned, misinterpreted and mangled by Democratic senators. The public stoning changed forever the process by which prospective judges are considered by the Senate. The ugly political theater destroyed the reputation, character and future of one of America’s most distinguished, honorable and accomplished jurists.
We know all too well the depths to which the Senate confirmation process has plunged. Aspirants to judicial posts keep their opinions to themselves and their scholarship bland. Presidents search for nominees with inscrutable or impenetrable — or nonexistent — records. Senate proceedings are marked by prolonged delays and filibusters. Hearings are consumed with hours of bloated speeches and endless probing for the slightest indiscretions, out-of-context utterances and exploitable weaknesses.
Judge Bork’s defeat in this shameful process was a particularly sad chapter in American history. Not only did it permanently alter the method by which we examine the credentials of judges, but it transformed the judiciary itself. Today no presidential nominee, no matter what the position, is immune from that kind of character assassination. Our political processes are widely infected with anger, incivility, divisiveness and rancor.
It is particularly tragic that Judge Bork was both the occasion for and victim of this lamentable political tipping point. His scholarly and brilliant study of antitrust law, “The Antitrust Paradox,” changed a century of thinking about economic regulation. His insightful analyses of constitutional jurisprudence altered the way many scholars and judges approached constitutional decision-making. His classrooms were exciting learning places. Judge Bork helped start and unstintingly supported the Federalist Society, inspiring tens of thousands of law students and lawyers to debate conservative and libertarian legal principles, which itself was emulated by liberals in recent years with the American Constitution Society.
Judge Bork’s arguments as solicitor general before the Supreme Court were models of brilliant, erudite, persuasive advocacy. His judicial opinions were insightful and perceptive. His commentaries on culture, society and morals were provocative and learned. His writing was elegant and eloquent, witty and memorable.
Judge Bork was politically attacked not because his qualifications fell short but because his viewpoints and scholarship were abhorrent to the left and precisely because he was such a brilliant, persuasive and effective advocate and such a towering intellect. His enemies could not stand to see him on the Supreme Court.
Those of us fortunate enough to know Bob Bork, the person, know that he was in many ways the very antithesis of the devil the liberals created. He was admired, respected and loved because he was warm, compassionate, generous, accessible, kind and very charming. Of course he was capable of an acerbic commentary on some aspect of modern culture or a sardonic takedown of a pretentious politician. Most of all, though, he loved life and lived it to the fullest, relishing intellectual challenges and enjoying his family, books, ideas, his incredibly lovely wife, Mary Ellen, and, of course, martinis.
Robert Bork, unfortunately, will be remembered in history books as the source of the verb “to bork,” meaning to attack unfairly and dishonestly one’s political foes. Those who knew him, learned from him, laughed with him, admired him and were inspired by his wit, wisdom and humanity will remember instead the man, the professor, the judge and the most loyal and engaging friend anyone could have.
Theodore B. Olson is a former solicitor general of the United States.
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By Rand Paul
Obama acts as though we no longer have a Constitution