Bench Memos

Jeffrey Toobin’s Anti-eulogy of Judge Bork

For those with the good luck to miss it over the holidays, The New Yorker ran an exceptionally mean-spirited obituary of Judge Robert Bork. Jeffrey Toobin’s anti-eulogy (malogy?) starts with the considered evaluation: “Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century.”

It goes downhill from there.

Unless you enjoy seeing great men maligned and slandered by those who they outclass both personally and professionally, I don’t recommend reading it. However, if you want to read a point-by-point refutation of Toobin’s many inaccuracies and shameless mischaracterizations, I recommend this response at Ricochet.com. And if you are curious about how to respectfully but honestly disagree with someone in an obituary, you may enjoy those by Jeffrey Rosen or Akhil Reed Amar, who maintain civil discourse without abandoning their own liberal perspectives.

Rosen’s obituary in particular is notable for its admission that the new “normal” in judicial confirmations following the treatment of Judge Bork and Justice Thomas is a sad step backward in our political discourse:

“But even from the sidelines, as I celebrated Bork’s defeat, I remember feeling that the nominee was being treated unfairly. . . .”

“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.”

If Judge Bork’s confirmation process represented a coarsening of our political discourse, then Toobin’s obituary signals a coarsening of our culture more generally. Far from hesitating to speak ill of the dead, Toobin takes “borking” to a new level of bad taste and cowardice by attacking a man on the very day of his death, when he can no longer defend himself. In the process, he makes Bork’s own words in the final chapter of Slouching Towards Gomorrah truly prophetic:

“But, for the immediate future, what we probably face is an increasingly vulgar, violent,chaotic, and politicized culture. Our hopes, our struggles, and our optimism must be for the long run. . . . As we approach its desolate and sordid precincts, the pessimism of the intellect tells us that Gomorrah is our probable destination. What is left to us is a determination not to accept that fate and the courage to resist it—the optimism of the will.”

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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