Many thoughtful pieces have been written by conservatives on the passing of conservative legal scholar Robert Bork, perhaps the most insightful from his former law student who later served as ambassador to the United Nations, John Bolton.
I want however to take the occasion to talk about the most infamous moment, in my view, in modern Senate history in which Bork was the victim. For that I will cite a liberal, The New Republic’s Jeffrey Rosen, who recounts the disgusting slurs leveled at Bork by the late Sen. Edward Kennedy (D-Mass.):
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.
Since then, Supreme Court nominations have become three-ring circuses and outside groups have filled their coffers while dragging distinguished jurists through the mud. Bork’s name became a verb, meaning to dismember one’s reputation and distort one’s views for political advantage.
It is worth remembering not only Kennedy’s role in this shoddy exercise, but now Vice President Joe Biden’s participation as chairman of the Judiciary Committee. When liberals complain about a dysfunctional Senate and a broken confirmation process, they have only their icons to blame.
As an aside, conservatives, particularly younger ones, are too apt to heap praise on Kennedy out of misplace nostalgia. Just the other day, Sen. Marco Rubio (R-Fa.) in lionizing Sen. Daniel Inouye (D-Hawaii) declared, “I have always lamented that I got to the Senate too late to meet Senators Edward Kennedy and Robert Byrd.” Really? If so, the passing of Bork should reassure him that his regret was ill-placed. And if he was gilding the lily, as I suspect he was, he should choose someone other than the man who defamed a legal scholar and good public servant while lowering the tone of politics and the stature of the country.
Robert Bork had what we hope for in public servants: intellectual honesty and courage. Perversely, as a result, he never made it to the Supreme Court. The loss was greater for the country than for him.