Twenty-five years ago, on July 1, 1987, President Reagan nominated Robert Bork to the U.S. Supreme Court, to replace the retiring Justice Lewis Powell. One hundred fourteen days later, on October 23, 1987, the U.S. Senate declined to give its consent to his appointment, by a vote of forty-two in favor, fifty-eight against. In the time in between, Bork was pilloried as few American public figures have been. But his ideas proved triumphant, even if he never had the chance to put them into practice as an associate justice of the Supreme Court.
I never knew Judge Bork, but I can attest to the sense that one was living through something historic—and historically bad—at the time of his confirmation battle. Just out of grad school and having taught constitutional law to undergrads in my first year of full-time work as a political science instructor, I was aware of Bork’s intellectual reputation when Reagan nominated him. (His 1971 article “Neutral Principles and Some First Amendment Problems” was an acknowledged classic, then as now.) I had studied American politics long enough to know that his nomination would not be uncontroversial to politicians and interest groups on the left. But even after the campaign against him began with the slanders of Sen. Edward Kennedy, I did not believe that he would be denied a judicial appointment he so obviously merited.
I should have remembered that where the abortion-on-demand regime is concerned, there is no principle of law, logic, fairness, or integrity that its partisans will not sacrifice in its defense.
Demonized though he had been, Bork went on to distinguish himself as a defender of originalism as the only coherent approach to constitutional jurisprudence, and as a trenchant commentator on American law, politics, and culture. In the estimation of Adam J. White in the October 2012 Commentary, “Bork Won” in the end, despite his Senate defeat, because originalism is today in the ascendant. The preeminent historian of originalism, Johnathan O’Neill, devotes an entire chapter of his book on the subject to the Bork nomination struggle and its fallout. It was that big a part of our constitutional history. White and O’Neill both get it right, I think.
Much of Bork’s best work in later years appeared in the pages of First Things:
“Justice Lite,” reviewing John Rawls’s Political Liberalism, November 1993.
“Hard Truths About the Culture War,” June/July 1995.
“Our Judicial Oligarchy,” part of the famous “The End of Democracy?” symposium, November 1996.
“Inconvenient Lives,” December 1996.
“Thomas More for Our Season,” June/July 1999.
“Constitutional Persons: An Exchange on Abortion” with Nathan Schlueter, January 2003.
“The Necessary Amendment,” August/September 2004.
We were all the beneficiaries of his powerful mind. May he rest in peace.