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Published: Sunday, 12/23/2012

Robert Bork’s legacy

Few people find themselves at the center of a political storm that changes history. Robert Bork, who died last week at age 85, was one of them.

Mr. Bork was a federal judge, a conservative legal scholar, and a former U.S. solicitor general. But his 1987 nomination by President Ronald Reagan to a seat on the U.S. Supreme Court made him a lightning rod for controversy. The precedents that were set — none of them good — linger to this day.

Before Mr. Bork’s nomination and confirmation hearing, bitter partisanship was not at the same level as after it. Before, a clear judicial record and a willingness to speak frankly about challenging legal theories were not necessarily liabilities.

Today, Supreme Court candidates are better off having bland and limited judicial records. Before the Senate Judiciary Committee, they know to play it safe and impart little of what they believe.

Confirmation hearings have become mime shows before frustrated partisan inquisitors. The positions of the candidates are only implied by the politics of the president who nominated them.

That this is the post-Bork way is blamed by conservatives on liberals who they say behaved badly during the Bork hearings. Certainly, the criticism of the nominee was sometimes over the top, as in a speech by Democratic Sen. Edward Kennedy, who portrayed “Robert Bork’s America” in almost apocalyptic terms about what would befall women, minorities, and other citizens looking for justice or protection from rogue police.

But more than a few grains of truth existed in such critiques because Mr. Bork was a far-right nominee proposed to replace a moderate justice, Lewis Powell. The irony is that Judge Bork deserved to be “borked” — that is, treated harshly for his political leanings.

Asked why he wanted to serve on the nation’s high court, he tellingly replied that it would be an “intellectual feast.” He was a jurist whose considerable intellect was not in the service of ordinary Americans thirsting for justice; he was more concerned about conforming to grand theories of strict constructionism. His head ruled his heart.

In the end, Robert Bork was not confirmed. Those who opposed him won that battle but lost the war, because other justices cast from the same mold sit on the court today. His legacy is a troubled one.

 



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