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Remembering Judge Bork
A tribute


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Although he often groused good-naturedly about the fate of a court of appeals judge, “stuck alone in a chambers with three 20-something law-school graduates and two secretaries, writing law-review articles about topics not of my own choosing” (his description of a court opinion), he was unfailingly generous with his time and attention with us, his clerks. My favorite day clerking for him was Super Bowl Sunday, 1984. He had fallen on black ice and broken his shoulder and could not come into work for months. He invited me to his home Sunday morning to discuss an opinion about the Foreign Sovereign Immunities Act involving a claim against Iran. After working for an hour or so, he asked if I wanted a Bloody Mary. Of course, I said yes. Judge Bork took his preparation of mixed drinks extremely seriously. He and his clerks spent hours debating the proper contents of the “Judge Bork martini” — very dry, up, with a twist. The debate centered around the gin — we finally settled on Bombay Sapphire — and how to ensure the proper amount of vermouth. The ultimate verdict: Shake the ice and the vermouth, then pour out the vermouth, and use the vermouth-covered ice to make the gin martini. But I digress — Super Bowl Sunday 1984 was about Bloody Marys, also mixed to perfection. (Sadly, I forget the recipe.)

Until 4 p.m. or so in the afternoon, and many Bloody Marys later, we discussed many things, but particularly, the judge told me his story about the part he played in the Watergate 1973 “Saturday night massacre,” when he was solicitor general. He has since published it, but it was very far from the “hatchet man” stereotype oft portrayed in the press. To the contrary, he said he agreed to fire Archibald Cox because he believed in the president’s power to fire executive-branch employees, which at the time included the special prosecutor. But he offered, even wanted, to resign as well, after doing so. He was persuaded not to resign, in part by William Ruckelshaus, the then–deputy attorney general, because there was then no provision for succession at the Justice Department, and it was unknown what would happen to the Department if all three of its leaders — the attorney general, deputy, and solicitor general — resigned at once. An ex-Marine, he took the hit and endured the ensuing calumny and controversy.

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Judge Bork wore his greatness and wisdom lightly. To many, his appearance, manner, and intellect were intimidating — and certainly did not come across well on television, up against smarmy senators — but to those who bothered to get to know him, he was accessible, witty, perceptive, and likely to say something profound about the state of the world, the law, or the comic “Pickles,” which he loved. Even many who initially opposed his confirmation admitted to me in private in recent years that they regret that he was denied a spot on the Supreme Court. They particularly regretted the hyper-partisan atmosphere that seems to have been ignited by that dispute, and which has lived on and indeed intensified. As for me, I regret not spending more time with him, because every moment with Judge Bork was fun and enlightening. Rest in peace.

— Daniel Troy is a lawyer in Washington, D.C.

 

ADAM J. WHITE
In reflecting on Judge Bork’s legacy, it is hard to improve upon his own words — specifically, the words with which he described his close friend and intellectual collaborator, Alex Bickel. Speaking in 1979, at his inauguration as Yale’s first Alexander M. Bickel Professor of Public Law, Bork reflected on his late friend’s place in constitutional law’s past, present, and future:

Some incumbents, doubtless, will be in active opposition to Alex’s philosophy, and may disagree with his entire approach. But the chair itself . . . will always remind us and those who come after us of the man, his work, and the tradition which he followed and enriched. That is no small thing.

The same must be said of Bork’s most famous book, The Tempting of America (1990). While there is no Robert H. Bork professorship at Yale — at least not yet, though one suspects that that may soon change — Bork’s summation of the then-nascent theory of “originalist” jurisprudence leaves a similar mark. His authoritative presentation of originalism gave Reagan-era conservative legal scholars a flag to rally around, a foundation to build upon. It remains today to console Bork’s friends, and to confront Bork’s foes.

Because of that book and Bork’s brave stand before the nation in 1987, we now truly do live in “Robert Bork’s America” — but not in the way that Ted Kennedy meant it when he slandered Bork 25 years ago. Today, in Robert Bork’s America,originalismis the dominant rhetoric of constitutional law, such that even liberal legal scholars, from Yale’s Akhil Amar and Jack Balkin to Washington’s liberal Constitutional Accountability Center, present their arguments not in the style of Justice William Brennan (let alone of Ted Kennedy), but of Judge Robert Bork.

— Adam J. White is a lawyer in Washington, D.C. He recently reflected on the 25th anniversary of Bork’s Supreme Court nomination in Commentary.


JOHN YOO
I knew Judge Robert Bork before I ever met him. As a student, I read about his role in the firing  of independent counsel Archibald Cox, was glued to the T.V. set during his 1987 confirmation hearings, and had my eyes opened by his defense of originalism. He taught millions about the Constitution and our republic without ever having to appear at a lectern in a classroom. Through his actions and writings, he shone as a rare public servant of integrity and even bravery, and the most influential conservative legal mind of our age.

But when I first seriously talked with Judge Bork he had returned to where he began: life as a scholar. He had asked me for some advice on speeches that would become a book, Coercing Virtue, on worldwide judicial activism. I read over a few drafts and came by his AEI office to discuss them. I was a little intimidated — I felt as if a giant was dipping his toe into my little pond of international law.

I could not have left his office more at ease or more impressed. He was working away on the draft in his smoke-filled AEI office, writing in long-hand with pencil (I believe). He was determined to get every word, every footnote, and every citation right. He wanted to make sure he fairly described the arguments of his opponents, even when they rarely returned the favor. He did not expect people to agree with him simply because he was the great Robert Bork, but because he was a scholar who had the best theory to explain the most stubborn facts.

Our conversation ranged over the legislative history of a mysterious 1789 Act of Congress, to what John Marshall was really up to in Marbury v. Madison, to whether conservatives could really slow the growth of government. Judge Bork was much amused by the image of my presence on the Berkeley campus; stories flowed of his conservative outpost at Yale in the 1970s. I left our meeting feeling that I had just had a one-on-one seminar with one of the great teachers and scholars of the American Constitution. In the years after, I counted myself as one of his students, though luckily one that never had to worry about getting a grade.

— John Yoo is a law professor at the University of California at Berkeley.



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