What if Robert Bork Had Joined the Supreme Court?

The law, lawyers, and the court.
Dec. 19 2012 5:57 PM

What if Robert Bork Had Joined the Supreme Court?

It probably would have been less politicized and more committed to the rule of law.

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Robert Bork, pictured in 2005. Bork passed away on Wednesday.

Photo by Alex Wong/Getty Images.

The death at 85 of Judge Robert Bork, a towering intellect and leading figure in modern conservative constitutionalism, should be the occasion for serious national reflection. Judge Bork had a distinguished career as a professor of antitrust and constitutional law at Yale Law School, as solicitor general of the United States, and as a judge on the U.S. Court of Appeals for the District of Columbia Circuit. But he will be most remembered for his defeated nomination for the U.S. Supreme Court in 1987.

At the time of his nomination by President Ronald Reagan, he was the most significant and respected figure in the conservative legal firmament. His work in antitrust transformed the field into a safeguard for competition and consumers. His work in constitutional law sparked a return to employing constitutional text and history as a constraint on judicial interpretation. But Judge Bork had the misfortune to be nominated in a year that control of the Senate passed from Republicans to Democrats. A year earlier, in 1986, Antonin Scalia, Bork’s former colleague on the D.C. Circuit and no less conservative a figure, had been confirmed by a vote of 98-0. Yet when it was Judge Bork’s turn, left-wing advocacy groups mounted a ferocious campaign of opposition, aided and abetted by Democratic senators including Edward Kennedy and Joseph Biden. The opponents caricatured and distorted Judge Bork’s views in one of the most shameless and scurrilous episodes in American judicial history. The defeat of his nomination was of course the result.

These events warrant reflection for two reasons. First, the politically motivated attack on Judge Bork’s views and character marked the end of civility in judicial nominations and established the modern practice of obstruction of well-qualified nominees by both sides. This now extends even to court of appeals and district court nominees. Political acrimony has poisoned the process of judicial selection and confirmation, to the great injury of our independent judiciary and the rule of law. Those who now deplore Republican opposition to President Obama’s nominees should be aware that the roots of this partisanship lie in the “Borking” of Bork.

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Second, Judge Bork’s constitutional vision was grounded principally in the need for judicial restraint—the idea that judges should not overturn the acts of democratically elected legislatures without a firm basis in constitutional text and history (a view that he called “interpretivism”). The justice who took the seat Bork did not was Anthony Kennedy, who is commonly dubbed a “moderate” because he votes, in different cases, with both the liberal and the conservative wings of the court. Studies of the court’s voting patterns indicate, however, that Kennedy votes more often than any other justice to overturn acts of legislatures both state and federal, whether for progressive gains like gay rights or limiting capital punishment, or conservative causes like blocking Obamacare or striking down campaign finance regulation. He is thus a very different kind of justice than Bork would have been.

Judicial restraint cannot hold unless it has strong and consistent advocates on both sides of the court. The successful left-wing attacks on Bork laid the groundwork for the conservative judicial activism that the left now loudly decries. No one knows how the judicial history of the United States would have changed if Robert Bork had been confirmed. But it is very likely that the court would be less politicized and more deeply committed to the rule of law. It certainly would have been graced by his intellect, humor, and judicial temperament.

Michael McConnell is the Presidential Professor of Law at the University of Utah.

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