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We're Still Paying the Price for the Borking of Robert Bork

In the summer of 1987, right out of college, I was a summer intern for Senator Joe Biden, who was chairing the Robert Bork confirmation hearings. My contribution to the epic battle was modest: I helped with research for a speech on the history of the confirmation process, in which Biden argued that the Senate had the duty to scrutinize not only the legal qualifications but also the constitutional views of nominees. This was a controversial proposition at the time; today it has been taken to extremes that neither Biden nor Bork, who died today at 85, could have imagined.

But even from the sidelines, as I celebrated Bork’s defeat, I remember feeling that the nominee was being treated unfairly. Senator Edward Kennedy set the tone with a demagogic attack. “Robert Bork’s America,” he said, “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, and schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of Americans.”

Bork’s record was distorted beyond recognition, and his name was transformed from a noun into a verb. The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking. And it had obvious costs for Bork.

Before the hearings, Robert Bork had been renowned at Yale Law School, where he taught for nearly two decades, not only for his influence on antitrust and constitutional law, but for his ideological open-mindedness: many students of his era fondly remember the seminar he co-taught with his closest friend on the faculty, the liberal constitutional scholar (and TNR legal editor) Alexander Bickel, which featured affectionate bipartisan debates. After Bickel criticized his conservative jurisprudence in one class, Bork replied, “You’ll notice that my colleague’s elegant theories of jurisprudence are a cross between Edmund Burke and Fiddler on the Roof.” TNR was said to be Bork’s favorite journal at the time, and in 1968 he wrote a piece for this magazine, “Why I Am for Nixon,” praising the Republican presidential candidate as the true heir of classical liberalism. 

After the hearings, he would become, in print at least, something of the caricature of legal conservatism that Kennedy had painted. But he remained friendly and convivial in private: Whenever I ran into him and his devoted wife, Mary Ellen, over the years at holiday sing-alongs, he loved to discuss his old friend Bickel over scotch. Although the hearings had left Bork professionally embittered, he remained personally gracious.

Then came the Borking of Clarence Thomas, with a similarly sad result: The transformation of another convivial conservative appellate judge, who had a record of friendly interactions with liberal colleagues on the U.S. Court of Appeals for the D.C. Circuit, into an angry partisan, determined to seek ideological revenge for decades to come. And then both parties wised up and decided, for strategic reasons, to avoid future Borkable nominees. That resulted in nominees without a significant paper trail on controversial constitutional questions—nominees like John Roberts and Samuel Alito and Sonia Sotomayor and Elena Kagan, all of whom seem to have measured every word since law school in an eerily prescient effort to avoid being Borked. And despite their professional distinction, these justices lacked the clearly identifiable judicial philosophy that allowed Bork not only to galvanize the right but also to transform America’s legal debate so that liberals as well as conservatives now have to take seriously arguments about the original understanding of the Constitution. Next to Antonin Scalia, Bork did more to put constitutional text and history front and center than any other judge in America. So if Learned Hand was one of the most influential progressive judges never to sit on the Supreme Court, Robert Bork was one of the most influential conservatives never to do so.

What will the future bring? More opaque, un-Borkable nominees, more polarization, more unfilled judicial vacancies (unless the filibuster gets exploded, leaving even more partisanship in its wake). And less of the values that Bork represented at Yale: bipartisan debate, intellectual experimentation, and a willingness to cross ideological lines. It’s a good thing that the man who Bork became after his defeat wasn’t confirmed to the Supreme Court: If he, instead of Anthony Kennedy, had been the swing vote between 1987 and 2012, America would indeed have been a more illiberal place. But it’s bad for the country that Bork was Borked in the way he was. American courts, judges, and constitutional law have been paying the price for the past twenty-five years, and the future looks even more bleak. That’s a grim form of payback in which the mordant Bork might have taken some gloomy, if grudging, satisfaction.

Jeffrey Rosen is the legal affairs editor of TNR.