Bench Memos

Did Bork Win?

This month marks the 25th anniversary of Judge Robert Bork’s Supreme Court confirmation hearing. In commemoration of the occasion, I would like to point readers to several excellent resources on the topic.

The first is an article by Adam White titled “Bork Won,” published this month by Commentary. White provides fascinating details about the Bork nomination — details that will be familiar to some, but new to many — and examines the cultural impact of the nomination and the way events unfolded. White concludes that the “nomination’s failure laid the basis for originalism’s eventual success.” As evidence of that success, he points to the fact that some liberals are now claiming their own form of originalism:

This year, the push for a liberal originalism grew all the more prominent when Yale convened a two-day conference to discuss Professor Jack Balkin’s liberal originalist manifesto, Living Originalism. At the very moment that the Supreme Court toiled away on its ObamaCare opinions, “liberal originalists” such as Yale’s Balkin, Akhil Amar, and others debated liberal non-originalists and conservatives on the basic question of whether originalism was strictly conservative intellectual territory. . . .

Only 25 years after Robert Bork suffered public defeat at the hands of Ted Kennedy and the left, the most interesting question in constitutional law is not whether conservatives can prevail with originalism, but whether liberals can prevail without it. Welcome to Robert Bork’s America.

I also recommend Hadley Arkes’s article, “The Loss of Robert Bork,” in The Catholic Thing. Arkes evaluates the Supreme Court’s jurisprudence over the last 25 years, and, contrary to White, argues that “Robert Bork did not win.”

And on the cases of greatest moment, such as Obamacare, “originalism” has made little difference. The sober truth of the matter is this: If Robert Bork had taken his place on the Court, Roe v Wade would have been overruled in 1992. His replacement, Anthony Kennedy, has been an active engine in extending the premises of gay rights, giving grounds for the courts to install same-sex marriage in Massachusetts and other states. And he has brought us now to the threshold of the Court imposing same-sex marriage on the country.  

Robert Bork did not win.  Every additional step by Anthony Kennedy, advancing the project of the Left, shows the continuing yield of what Joe Biden and his friends accomplished. For Biden and Co., the defeat of Robert Bork is the gift that never stops giving.

For more on Judge Bork’s career and contributions to the law, I recommend this video tribute, by the The Federalist Society, as well as this series of Federalist Society panels/discussions. Worth noting: As the tribute video explains, Judge Bork’s last name is now a verb in the Oxford American Dictionary, to “obstruct someone (especially a candidate for public office) through systematic defamation or vilification.”

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