Wednesday, December 26, 2012

Robert Bork: All Brain, No Heart


DECEMBER 20, 2012
Despite his intellect, the former Supreme Court nominee lacked one quality any good judge must have: empathy.

The country dodged a bullet in 1987 when Robert Bork, nominated by President Ronald Reagan for a seat on the Supreme Court, lost his Senate confirmation by a vote of 58-42. If he had been confirmed, he would have likely served on the Court for the past 25 years, until his death yesterday at the age of 85.

The right’s eulogies have begun—the National Review has called him “one of the best legal minds that America has ever produced, probably the best in the postwar world.” That’s hyperbole, but he was indeed no slouch in the smarts department. He did important scholarly work in anti-trust law, and many point to him as the most persuasive advocate of interpreting the Constitution according to its “original intent.” (Antonin Scalia will surely be annoyed when he reads that.)

I have no desire to speak ill of him as a man. I will assume that he loved his family, gave candy to children on Halloween, and rescued cats stranded in trees. But we are fortunate indeed that he did not make it to the Supreme Court. We are fortunate not because he was dumb (he wasn’t) or conservative (he was). The real reason we are fortunate he never made it to the Court is that he seemed to lack a fundamental quality of a good judge: the realization that the law has massive implications for real people, and the ability to imagine oneself in another’s situation in order to measure those implications. One might call this empathy.
Bork thought 
  • Roe v Wade was a travesty, 
  • civil-rights laws were a violation of the freedom of businesses, and 
  • the Court’s imposition of the one-person-one-vote rule a judicial overreach. 

When Bork’s nomination failed, Reagan eventually nominated Anthony Kennedy, who has been somewhat to the left of where Bork would have been. While that nudge leftward made a difference less often than you might expect, the handful of cases in which it did were significant: 

  1. Planned Parenthood v Casey, which upheld Roe v Wade; 
  2. Gonzales v Raich, which halted the Rehnquist Court’s narrowing of the commerce clause;
  3. Roper v Simmons, which ended capital punishment for juveniles; and
  4. Boumediene v Bush, which subjected the Guantanamo detention camps to judicial oversight. 

But his conservatism is not the main reason we dodged a bullet. Conservatives come and go. Bork certainly would not have been out of the conservative mainstream on a Court providing leather-bound seats for Scalia, who compares sodomy to murder, and Clarence Thomas, who thinks minimum-wage laws are unconstitutional. Bork’s originalism might have encouraged the other two to be even more brash, but that might have made them less influential with Sandra Day O’Connor, the swing vote during the 1980s and 90s.

Honestly, it’s not his conservatism that bothered me. It’s the pompous intellectualism that made him see the job as one best performed by a detached theorist, unconnected to the reality of what the Court decides. This defect was illustrated by an exchange near the end of his confirmation hearings. One of his Senate allies, Alan Simpson of Wyoming, tossed him a softball: “Why do you want to be an Associate Justice of the United States Supreme Court?”

During Watergate, Bork carried out the president’s order to fire special prosecutor Archibald Cox after the attorney general and his deputy had resigned rather than dismiss Cox.

A nominee with any sense could use this as an opportunity to talk about the ideals of public service, the importance of liberty to the nation’s identity, and how important it is for the Supreme Court to look after those who are shut out by the political process.

That’s not where he went. Instead, he answered: “I think it would be an intellectual feast just to be there.” It was the response of an egghead, and it doomed his nomination.

If he had served, this intellectual pomposity would have made it virtually impossible for him to do the things that good judges do: maintain openness to influence and argument, question one’s own biases, and guard against overconfidence. Such intellectual qualities are important any time, but especially so when making decisions in a group as homogeneous and stodgy as the Supreme Court. (At the time of Bork’s nomination, the Court had seen only one female justice and one African-American justice in over 200 years.) In the last quarter century, when cases reached the Court asking questions about abortion, the right to die, affirmative action, free speech, and gay rights, Bork would have seen these not as cases affecting millions of Americans but as an intellectual exercise.

Since Bork’s flame-out, nominees and presidents have learned their lesson, making clear that they understand the importance of the Court’s impacts on regular Joes and Josephines. Or at least they say they do.

But Bork never learned to rise above hard-headedness. A few years after his failed nomination to the Court, he decided to resign his seat on the Court of Appeals in Washington, D.C. to take advantage of lucrative opportunities in think tanks and on the speaking circuit. As he voluntarily left his life-tenured job on the second most prestigious court in the country, he felt so oppressed that he apparently thought the situation called for a good quote from Martin Luther King, Jr.: “Free at last, free at last, Thank God Almighty, I’m free at last.” 

Robert Bork helped develop and popularize the theory of “originalism,” which requires justices to be guided by the original understanding of the U.S. Constitution
It makes one shutter to think that someone that obtuse might have been on the Court for the last 25 years. Thank God Almighty, indeed.

By Mona Charen
December 21, 2012 12:00 A.M.

His influence may have been greater off the Court than it would have been on.

The last time I saw Bob Bork was the Sunday before Election Day. His familiar baritone was faint. You had to sit close to hear him, and he seemed to have a little difficulty following the conversation.

At one point, his son Bob directed his attention to an Obama ad that was running on the Internet. It warned darkly that if Romney were elected, he would nominate Robert Bork for the Supreme Court! Bob, who has inherited his father’s wry sense of humor (as well as his intellect), played the ad on an iPad. Bob Sr. didn’t react at first and we wondered whether he’d even gotten the drift. But then, eyeing it with the mischievous look he so often wore, he gestured toward the 25-year-old photo of himself, “Awful picture, as you’d expect.” That was the Bob we knew and loved!

Robert Heron Bork was born in Pittsburgh, Pa. He entered the Marine Corps at the age of 17 and served in World War II. He then blazed through the University of Chicago in two years (students were then able to get credit for courses by taking an exam). He pocketed a law degree, fulfilled his obligations to the Marine Corps a second time when the Korean War erupted, and then settled into a career in law.

Bork was blessed with two wonderful marriages. His first wife, Claire, and he met in college and had three children together. She was diagnosed with cancer in 1971. Her doctor told Bob that there was nothing to be done, that her case was terminal, and that he should keep this from her. He got her another doctor, and she lived nine and a half more years. Two years after her death, Bob married the second warm, intelligent, and beautiful woman who would grace his life, Mary Ellen Pohl, a former nun. “Her parents were worried that she wasn’t worldly enough to get married,” he once recalled. “I reassured them that I was worldly enough for both of us.”

The name Bork has become a verb because he endured the first of the vicious, libelous, character-assassinating campaigns that have come to characterize judicial nominations and other contests in which liberals feel justified in “lying for justice.”

The passage of time has not diminished the outrage one feels on revisiting that campaign. Senator Ted Kennedy, who had through criminal negligence caused the death of a young woman, warned the nation that Judge Bork was dangerous to women. The ACLU, People for the American Way, and the Alliance for Justice, along with their compliant agents at the major networks, newspapers, and magazines, floated a series of lies and distortions that left all standards of decency and fair play behind. Bork supported “literacy tests” for black voters; he opposed the teaching of evolution in schools; he favored the poll tax; opposed equal accommodations for black Americans; denied the principle of one-man, one-vote; would overturn 30 years of civil-rights legislation; would prevent married couples from using contraception; and supported mandatory sterilization of women in certain circumstances. Not a syllable was true.

Bork did support overturning Roe v. Wade — and that was probably the nub of it. If there was one thing liberals were determined to prevent, no matter what tactics were required, it was the free votes of Americans in their 50 states regulating abortion. No lie was too low for that sacred project.

Bork’s nomination was defeated. President Reagan might have saved it had he waded in more energetically. But he was still reeling after the Iran/Contra imbroglio and had retreated to his ranch during the thick of it.

While the nation was deprived of Bork’s service on the Supreme Court, where he would certainly have shed illumination in all directions, it did gain a powerful public intellectual. He published two bestsellers (The Tempting of America and Slouching Towards Gomorrah) as well as a number of other books and essays. He lectured, traveled, and argued cases before the Supreme Court. His influence on American life may in fact have been greater off the Court than it would have been on it.

He was never bitter, though often mordant. Once freed of the constraints of a judge or nominee, he had his say fully and persuasively on law, culture, and other matters. The Metzenbaums, Bidens, and Kennedys of this world were elegantly filleted by the Bork pen. During the hearings, he was at the mercy of their lies. Afterwards, they were at the mercy of his intellect. The second contest may have been even more lopsided than the first.


— Mona Charen is a nationally syndicated columnist.

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