Robert Bork's 'Intellectual Feast'

Robert Bork, who died Wednesday, was a polarizing figure. He was an originalist who was both revered and reviled for his positions on controversial issues.

"Robert Bork's America 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, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens“ --Senator Edward Moore "Ted" Kennedy (D – Massachusetts). July 1, 1987

Robert Bork died December 19, 2012, from complications related to heart disease, and thus passed away a brilliant originalist and a fiercely conservative legal mind of the last fifty years. His last public interactions were as a consultant to Mitt Romney in his presidential campaigns since 2007, and had the distinction of an eponymous verb entered in the dictionary on his behalf:

bork verb

obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them

What else did Bork do?

He crusaded against liberalism, blaming it for every conceivable ill that plagued the nation, with an astonishingly religious slant for a jurist. He frowned upon premarital sex, working mothers and bemoaned the moral decadence he attributed to the Left’s embrace of egalitarianism and individualism. His book Slouching Towards Gomorrah: Modern Liberalism and American Decline will probably gain posthumous acclaim, especially since it espouses many Tea Partiers’ vision of what America should be.

[It is $0.01, used, at Amazon. So grab it, Tea Partiers]

So was Kennedy wrong to, er, bork him like that?

Bork himself argued that Kennedy was, yet his expressed opinions on landmark cases left him vulnerable to the charge. He opined that Roe v. Wade was wrongly decided since the Constitution never granted the right to privacy, opposed the Civil Rights Act of 1964, which banned whites-only counters, calling it a “moral abomination,” opposed Griswold v. Connecticut which granted married couples the right to contraception, argued that the Constitution did not provide protection from gender discrimination, and stunningly insisted that the First Amendment only protected political speech. Not porn, science, arts, or anything considered obscene.

He further argued that the government could (and should) regulate culture, and engage in its “censorship.” That it could ban homosexual behavior or specific instruction in schools. An example of such was his opposition to Meyer v. Nebraska, in which the Supreme Court overturned a ban on the use of the German language in a private school. In 1919, following the First World War, anything German was evil. Bork opined that if the state wanted to ban the use of German, it could do so.

[I sense that Bork just replaced Scalia as a Tea Partier’s favorite jurist]

But here’s one that would have left the modern conservative angry. Bork firmly believed that the Second Amendment did not grant an individual right to bear arms. He said "I'm not an expert on the second amendment, but its intent was to guarantee the right of states to form militia, not for individuals to bear arms [and] assault weapons could be banned under the Constitution [by states],” and when asked whether his statement would apply to all gun control, he responded "Probably, it doesn't mean it's a great idea. It's probably constitutional." 

The NRA naturally distanced themselves from him.

That last sentiment, where he opines simultaneously that gun control is a bad idea but nevertheless constitutional, is what his supporters cite to refute Kennedy's portrayal: while his personal views on issues differed, he'd have been an impartial jurist; one that would have adhered to the Constitution.

His originalist opinions of the Constitution aside, he also gained notoriety for his role in President Nixon’s "Saturday Night Massacre". Nixon wanted to fire the independent special prosecutor Archibald Cox appointed to investigate the Watergate scandal, but ran into problems when his own Attorney General Elliot Richardson and his deputy William Ruckelshaus both resigned rather than fire Cox.

Bork then did the needful as Nixon’s Solicitor General and acting head of the DOJ. The perceived abuse of presidential power by Nixon, and Bork’s role also weighed heavily at his confirmation process.

This brings us to the title of this post. During the confirmation hearings, Alan Simpson asked Bork why he wanted to be an Associate Justice of the United States Supreme Court, and Bork responded:

"Senator, I guess the answer to that is that I have spent my life in the intellectual pursuits in the law. And since I've been a judge, I particularly like the courtroom. I like the courtroom as an advocate and I like the courtroom as a judge. And I enjoy the give-and-take and the intellectual effort involved. It is just a life and that's of course the Court that has the most interesting cases and issues and I think it would be an intellectual feast just to be there and to read the briefs and discuss things with counsel and discuss things with my colleagues.” 

So what was an honest answer came across as hubris, since the highest court in the land was for dispensing justice, not one’s intellectual playground. His nomination probably had been scuttled long before that, but that was the final straw. 

Had Bork been confirmed, do you think we would have been living in a different America, and would it be one closer to your ideal?

This post is contributed by a community member. The views expressed in this blog are those of the author and do not necessarily reflect those of Patch Media Corporation. Everyone is welcome to submit a post to Patch. If you'd like to post a blog, go here to get started.

Seth Eaker December 28, 2012 at 06:46 PM
Excellent article and commentary as always. I would say in answer to the question, that sometimes, issues are determined by just one voice or vote. Bork would not be a vote that I could generally abide or support because his ideology did not seem to ever be separate from his analysis. A mark of a true intellectual is the ability to hold two conflicting thoughts or views in mind at the same time. I am uncertain that Bork would ever admit to uncertainty in any realm of law.
Panglonymous December 29, 2012 at 06:26 PM
pulling this out of his... stacks. intoxications - both rational and nebulous are potentially, but by far, the rational, the ability to willfully control, is more highly valued and sought after intimations - reg folk have only, of the intoxications the exceptional experience in the rational and nebulous realms yet, in interpreting the ambiguous, one of the dialects of law, the originalists must bring more to table than a hyper efficient rationality if not whom, then what, does (a) justice serve? squishy mcdealer and his pals? a private feast of brains?
Panglonymous December 30, 2012 at 10:03 PM
Hey, Lazlo. Reaching back, I pull this out of my... stacks. :-) Both the rational and the nebulous states of mind can be intoxicating; but by far, the rational state, the ability to effectively control, is more highly valued and developed. (Regular folk have only a notion (if that) of the intoxications the exceptional can experience in either state.) Yet, in interpreting the ambiguous (one of the dialects of law) jurists must bring to bear more than a hyper-developed rationality. They must remain open to the shapes, voices and textures inhabiting the spaces between, asking: If not whom, then what, does (a) Justice serve?
Panglonymous December 30, 2012 at 10:05 PM
Shri, elegantly expressed. Do you know anyone personally whose mind would seem suited to judicial challenges? If so, how would you describe that mind and the person wrapped around it?
Panglonymous December 31, 2012 at 08:55 PM
New post, embarrassingly relevant, from a very handsome blogger... in another COUNTY!! http://belmontshore.patch.com/blog_posts/slim-none May God grant you the serenity to click through.


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