We did not want the year to pass without lamenting the loss of Robert Bork, who died 19th December age eighty-five. Among the greatest American jurisprudes, he is alas more remembered instead as a verb, for what was done to him. President Reagan managed to get Antonin Scalia onto the Supreme Court (its finest mind to the present day), but the Democrats who controlled the United States Senate in 1987 had long been chafing at Reagan’s rightward judicial course. A Nixon appointee was now retiring, whom the Left had come to appreciate for his mediocrity & pliability. The last thing they wanted was another Constitutional “Originalist” to replace him, with fire & spine. (The Originalist position is to discover what the Constitution “originally” said, & apply that; rather than “creatively” misreading it to get what progressives want & Congress won’t give them.)
And so the campaign to bork Bork began before he was even nominated. It would be a vicious campaign of personal smears & slander against “fill-in-the-blank.” Upon Bork’s actual nomination, Joe Biden quickly draughted a brief in which Bork’s views & career were caricatured with scurrility; the Democrat politicians & progressive lobbyists primped their outrage for the cameras; & the liberal media went dutifully to work amplifying each insinuation.
The most memorable part of this performance was the late Senator Kennedy’s theatrical denunciation, of “Robert Bork’s America.” It was a succession of very bald statements, each a knowing & malicious lie. Bork & his allies were taken aback; they were not prepared for the full stench of what was venting into the Senate chamber from Teddy Kennedy’s soul. Even for a man among the most disgusting ever to demean American politics, it was an unprecedented performance. And yet, in the sight of millions of zombified television onlookers, it succeeded in its object. Robert Bork’s honest reputation lay buried under Kennedy’s steaming pile; & the honour of the Democrat Party went into total eclipse, where it has remained for the past quarter century.
Bork himself, a very decent & learned man, normally quite courageous, was shaken to the point of resigning his appellate-court seat, to become an independent legal scholar. During the Senate hearings, he often seemed amazed by what was being said to him, & asked of him — abandoning legal arguments half-stated, not from any apparent desire to pull his punches, but from the pointlessness of explaining anything to Gadarene swine. His own decisive arguments against e.g. the construction of “civil rights” principles out of thin air, or of the “right to privacy” that justified Roe v. Wade, trailed off into silence. One must go to his books to find them completed.
His book, The Temptation of America (1990), offered powerful insights not only into the techniques but the mindset of several generations of judicial activists, going back to the New Deal if not Woodrow Wilson, rewriting laws with which they did not happen to agree, for the sake of abstract conceptions of justice that were incoherent. He carried this farther in Coercing Virtue (2003), which surveys judicial activism throughout the Western world; for everywhere self-confident liberal judges are putting such cracks into the edifice of law, by means of grand & preening acts of moral & intellectual vandalism.
Bork wrote Slouching Towards Gomorrah (2003), & edited A Country I Do Not Recognize (2005), about activist legal assaults on the commonly-held moral values that serve as the glue for our civilization. Everywhere, liberty is being redefined as licence, & individual liberty confined to the expression of the vile & obscene. Yet throughout Bork maintains a voice that is calmly & cautiously working within the parameters of the old American constitutionalism, often candidly admitting that little or nothing can be done.
We met him a decade ago, up here in Toronto, at a moment when we were both moving into the Catholic Church. Bork’s second wife, Mary Ellen née Pohl (his first died of cancer) led him gradually into the fold, by example he said — a very charming & kindly woman. Alike, Bork & his wife were of the old neighbourly school of America, who took the world for a small town, & greeted everyone in passing. On parting, they casually invited us to stay with them, on our next jaunt towards Virginia. We should have leapt at the opportunity to continue what was already an exhilarating conversation.
Our impression was that, in addition to the spiritual substance of Catholicism, Bork was attracted to the light of Natural Law, in its ancient Catholic exposition; that he was mulling in this light his own implicit legal positivism (that is, the view that the validity of a law depends not on its merits, but on its sources). This followed, too, from revisiting his own earlier “revolutionary” thinking in The Antitrust Paradox (1978 & revisions), where he argued that the law was meant to protect the interest of consumers, which might or might not actually be harmed by any given corporate merger, & must therefore be considered from more angles, less by rote & with more common sense.
He was, we speculate, developing a position more Harry Jaffa than Harry Jaffa — or as we like to think, moving towards what could be labelled, “Originalism Squared.” Where the U.S. Constitution gives only vague, ambiguous, or even contradictory indications of right, it nevertheless points back to natural law principles from which a clearer indication might be constructed, which could then be shown consistent with Constitutional instruction. Bork was endowed with a mind self-critical & intellectually humble; his gift was to stop short, as he thought judges should always stop short, of pushing beyond a demonstrable cusp of clear understanding. But he began to look beyond, towards territory quite different from what activist judges had imagined.
There is never enough time, in this world, & a man grows old before all the implications of his faith & belief & knowledge have truly begun to unfold. As Bork said to me (paraphrase): “Your instincts may be sound, & your argument may be self-consistent, but then your realize the foundations on which you are building are too rough, & you must explore the deeper foundations.”
“Old men should be explorers,” as T.S. Eliot said, “still & still moving,” towards “a further union, a deeper communion.”
In the end Bork was grateful to have been borked. He would have had to spend his last years corked in the bottle with eight other judicial scorpions, joining hapless minorities on the Supreme Court bench, writing opinions on cases themselves misconceived, taking heat for ideas he had never entertained, & yearning for personal freedom. Instead, by luck, he was allowed to roam. “Defeat is the great liberator,” we said apropos another matter entirely, & noticed the sparkling approval in his eyes. Conversely, victory in this world is the usual prelude to disaster. It is a wonderful grace of God to be spared it.