This column by ACRU Senior Legal Analyst Ken Klukowski was published on December 19, 2012 on Breitbart.com.
The nation mourns the passing of one of the finest judges ever to sit on the federal bench: Robert Heron Bork. This distinguished judge passed away on Dec. 19 at the age of 85, and his contributions to the law and to the judicial process are nothing short of historic.
Bork was one of the most brilliant judges the country has ever seen. His theory on antitrust is the foundation of the modern doctrine in federal law, and his academic works on constitutional law–exploring the role and powers of government–are profound.
His career reflected this brilliance. A top graduate of the elite law school at the University of Chicago, he became a professor at Yale Law School, America’s top-ranked institution. He also served as U.S. solicitor general under Richard Nixon, the U.S. government’s top lawyer before the Supreme Court.
In 1982 he became a judge on the U.S. Court of Appeals for the D.C. Circuit, the most prestigious of the federal appellate courts and a farm team for the Supreme Court. (Four of the current nine Supreme Court justices were D.C. Circuit judges.) On the D.C. Circuit, Bork distinguished himself as a towering intellect even among the other judges on that court, including future justices Antonin Scalia and Ruth Bader Ginsburg.
President Ronald Reagan sought to build a Supreme Court with the three greatest conservative intellectuals on the bench in the 1980s: William Rehnquist, who was already on the Court and whom Reagan appointed chief justice in 1986, Scalia, whom Reagan also put on the D.C. Circuit in 1982 (after Bork) before appointing to the Supreme Court in 1986, and Bork. Of these, Bork would have been the most principled originalist, in the mold of future Justice Clarence Thomas.
Bork may have been the most articulate and consistent judicial proponent of originalism. In a democratic republic where the Constitution is adopted by We the People, the only legitimate way for unelected judges to interpret the Constitution is by assigning to the words of the text the meaning that a person of moderate education and public awareness would give them. Thus, the judge must faithfully follow the words the American people chose to enshrine as the Supreme Law of the Land.
When lawyers cite one of Bork’s opinions from a D.C. Circuit case, many (including me) often follow the citation with “(opinion of Bork, J.).” This rare parenthetical is almost exclusively reserved to appellate opinions from judges who go on to serve on the Supreme Court, flagging to whoever looks at that citation to recognize that this opinion came from a true legal giant and should be accorded more weight and deference than typical appellate opinions.
Bork will be most remembered, though, for one of the most controversial Supreme Court confirmations in history, one that changed America forever.
When Justice Lewis Powell retired from the Supreme Court in 1987, Reagan nominated Bork to the vacant seat. That very same day, Sen. Ted Kennedy took to the Senate floor to give his infamous “Robert Bork’s America” speech, where he said blacks would be forced to sit at segregated lunch counters and police could kick down citizens’ doors at night.
The speech was shameful and disingenuous, but the Reagan White House was caught flatfooted, as for the first time the political machine–this time from the Far Left–had pre-planned and organized a national campaign to demonize Reagan’s nominee.
Before 1987, the only three factors considered by the U.S. Senate in a Supreme Court nomination were education, experience, and character (honesty and integrity). Never before had a qualified nominee been rejected only because of his judicial philosophy. Just one year earlier, Scalia had been confirmed 98-0 despite being well known as a staunch conservative, with liberals like Sen. Pat Leahy making a statement adamantly opposing Scalia’s philosophy, but acknowledging that the president was entitled to appoint justices reflecting their philosophy.
After months of coordinated attacks–including even (for the first time) television ads–the message began to take hold with average Americans. The White House and Republican Party–never having dealt with such a campaign–couldn’t figure out how to respond effectively. Bork’s nomination was defeated by the Democrat-controlled Senate 58-42.
As I discuss with my coauthor in Chapter 6 of our second book, Resurgent: How Constitutional Conservatism Can Save America, the Constitution’s judicial confirmation system has been broken since Bork’s defeat in 1987. Now Senate confirmations are vacuous and banal instead of worthy debates on judicial power and how to apply the Constitution, replaced by a game of gotcha politics and searching for hidden code words as to how a nominee would rule on various hot-button issues (always including abortion). Democrats, in recent years, have extended this dysfunctional approach even to appellate court nominees, and the country is worse off for it.
This also points to a fundamental problem that plagues the Republican Party.
Democrats are united in wanting judicial activists–liberal judges who do whatever they believe is “fair” and “just,” creating rights with no basis in the text or history of the Constitution such as abortion and gay marriage, but denying the plain meaning of provisions they disapprove of, such as the Second and Tenth Amendments.
Republicans, by contrast, are split on the kind of judges they want. More than half want textualists–or, better yet, originalists–like Robert Bork and Clarence Thomas. A minority who dominate establishment circles and often end up shaping who becomes the presidential nominee and filling key executive positions, however, are perfectly content with moderate judges; they themselves are not committed to supporting and defending the Constitution as it is written.
Until the Grand Old Party comes to terms with the need for constitutionalist judges–and the indispensable role judges play in our three-branch system of government–we won’t restore this country to the path of long-term freedom and prosperity bequeathed upon us by our Founding Fathers.
The writings and legacy of Judge Robert H. Bork eloquently make the case for constitutional government, and America will be well served if we honor Bork’s memory by heeding his wise and timeless words, allowing them to inform our deliberations as we decide what kind of judges to demand on our federal courts.