The Corner

The Impact of Bork

As Jacob Sullum notes, my old friend Laurence Tribe seems to be arguing that the Senate’s rejection of Robert Bork was a kind of constitutional moment that weakened the merit, and not just the political viability, of certain conservative claims about the Constitution. Now obviously the Senate rejected Bork in important part because many senators, and many voters, rejected his constitutional philosophy. But the facts that people disliked Bork’s beard, that Southern Democrats smeared Bork as an atheist and socialist, and that Ted Kennedy smeared him in numerous other ways, also played a role. In trying to figure out what the Constitution means post-Bork, is an interpreter of it supposed to make a political judgment about how much his philosophy was repudiated and how much other factors came into play? If a differently-constituted Senate confirms someone who thinks very similarly to Bork but presents himself differently, have we had another constitutional moment? Or is this a judicial Brezhnev Doctrine that lets liberals keep any gain they make forever?

Ramesh Ponnuru is a senior editor for National Review, a columnist for Bloomberg Opinion, a visiting fellow at the American Enterprise Institute, and a senior fellow at the National Review Institute.

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