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The Corner

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Judge Bork, R.I.P.



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Judge Robert H. Bork was, like St. Thomas More, a man for all seasons. His brilliance, wit, charm, and sense of humor helped him to revolutionize constitutional law. Judge Bork was the first and, for a time the only, academic to challenge the judicial activism of the Warren and Burger Courts. Two years before the decision in Roe v. Wade, he wrote a seminal law-review article titled “Neutral Principles and Some First Amendment Problems,” which laid the intellectual groundwork for the originalism of Justices Antonin Scalia and Clarence Thomas. Judge Bork’s criticisms of judicial activism were withering and effective. He transformed constitutional law just as earlier in his career he had transformed antitrust law, which he infused with the idea of promoting consumer welfare. Judge Bork was the rare academic whose work caught on, was read, and had an impact on the real world. He wrote and spoke eloquently, elegantly, and from the heart.

Judge Bork was a man of action as well as a man of ideas. He thus was a kind of platonic philosopher king — a label he would have vigorously resisted. Judge Bork was both an intellectual and a statesman. He began his service as solicitor general of the United States under Presidents Nixon and Ford — a position from which he argued the government’s cases before the Supreme Court. In this post, Judge Bork played a key role in persuading the Supreme Court to reinstitute the death penalty in Gregg v. Georgia. He became acting attorney general of the United States in 1973 after the Saturday-night massacre — a key event in the unfolding of the Watergate scandal. His integrity helped to hold the Justice Department together in one of its most trying moments.

Judge Bork assumed the post of acting attorney general after Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus were forced out of office by President Nixon for their failure to follow a presidential order firing Archibald Cox, the Watergate special prosecutor, who was investigating Nixon’s criminal misconduct. Judge Bork hired Leon Jaworski to complete the Watergate investigation after Cox’s firing. Jaworski’s investigation ultimately led to Richard Nixon’s becoming the first and only president ever to be forced to resign from office in American history. During this time, Judge Bork also negotiated a plea agreement with then-vice president Spiro Agnew, who pled nolo contendere to charges of criminal wrongdoing and who resigned from the vice presidency. Judge Bork thus played a critical role in the complicated series of events that led to Gerald R. Ford’s becoming president in August 1974. Judge Bork was vilified by the Left during this period for firing Archibald Cox, as Nixon had ordered, but he saw Cox’s investigation through to a successful culmination under Jaworski.

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President Ronald Reagan named Bork to the U.S. Court of Appeals for the D.C. Circuit at the beginning of his administration. Judge Bork served on the D.C. Circuit with great distinction from 1982 to 1988, writing many eloquent opinions. In 1987, President Reagan nominated him to the U.S. Supreme Court to replace retiring Justice Lewis Powell. Judge Bork’s nomination triggered a massive nationwide campaign by his supporters and opponents, unlike any the nation had ever seen. The ferocity and viciousness of the campaign against Bork was stunning and more like a presidential campaign than it was like any prior Supreme Court confirmation process. Senator Edward Kennedy’s disgraceful behavior in the confirmation process caused Judge Bork’s name to become a verb: To “Bork” someone meant to engage in a vicious exercise in character assassination.

After leaving the bench, Judge Bork became a prolific author. He wrote The Tempting of America, a book on originalism and constitutional law that became a bestseller, and additional books about social and moral decay in American culture. Judge Bork was succeeded on the D.C. Circuit first by Justice Clarence Thomas and then by his former assistant from the solicitor general’s office, Ray Randolph — both of whom were deeply influenced by Bork’s thinking and both of whom have had stellar judicial careers. Another important Bork protégé from the solicitor general’s office, Judge Frank Easterbrook, is now the highly esteemed chief judge of the U.S. Court of Appeals for the Seventh Circuit. Bork’s former law clerks include Harvard Law professor John Manning; University of Virginia School of Law professor John Harrison; and George Washington University School of Law professor Brad Clark. Judge Bork’s writing has had a huge impact in academia, where it helped inspire not only conservative originalists but also some liberal originalists at Bork’s old home at Yale Law School, such as Akhil Amar and Jack Balkin. Judge Bork’s intellectual imprint on constitutional law and antitrust law is incalculable.

I was lucky to be a student in the very last class that Judge Bork ever taught at Yale Law School, which was a seminar on the theory of judicial review. It was one of the very best classes I ever took. I will never forget the way Judge Bork engaged with me, the respect with which he treated his students, and the fun of having lunch with him or talking with him as a law clerk. Judge Bork was not only famous and prolific and hugely successful; he was also a wonderful and fun companion in good times and bad. Even in his retirement the judge continued to have an impact on politics, as when he condemned the nomination of Harriet Miers to the Supreme Court — thus paving the way for the nomination instead of a brilliant conservative intellectual, Samuel Alito. Judge Bork will be sorely missed by all of us who believe in liberty, the rule of law, and constitutional government. We must carry on with the same wit, dignity, intellect, character, and devotion to principle that he exuded throughout his life.



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