With Robert Bork’s death on Wednesday, December 19, I didn’t think first of his failed nomination to the U.S. Supreme Court. Instead, I was back in my first semester of law school, as a student in his class on Constitutional Law.
By the time I took my seat in his class in the Fall of 1980, Bork was already well known. During the Nixon Administration, he’d served as U.S. Solicitor General, the Administration’s advocate in the Supreme Court. When the Watergate Scandal began to consume Nixon’s presidency, Archibald Cox was appointed special prosecutor. Cox showed every sign of pursuing the ugly facts of the case all the way to their origin, and Nixon wanted him fired. But Nixon’s Attorney General, Elliot Richardson, and Richardson’s deputy, both refused. Bork stepped forward and fired Cox, in what was known thereafter as “the Saturday Night Massacre.”
Bork was also well known as an acerbic and distinctively conservative voice among law professors. It was he who came up with what became known as the “original intent” school of constitutional interpretation. According to Bork, the language of the Constitution and its amendments could only be understood through the intention of those who wrote those words. Thus constitutional protection for the rights of women, privacy protections for personal decisions on birth control or abortion, the one-person-one-vote rule, even the 1964 Civil Rights Act and its regulation of interstate commerce on a non-discriminatory basis — all of these would be out under the Bork philosophy.
In the classroom, we could all see that Bork was an incredibly smart man. His mind was powerful, supple, and insightful; he ran rings around all of us without any effort at all. Lazy, fuzzy, or unexamined thinking got students into trouble quickly. There was also little humor or humility in his approach; he was a guy with THE ANSWERS, and he made sure you knew it. The class was challenging, and forced me to re-examine everything I thought I believed, and everything that generations of justices had said in their opinions. Now, with twenty years in front of classrooms in law schools myself, I know that was the point. But I often found myself recoiling from what I considered a harsh, almost Hobbesian worldview. The clear implication of many of Bork’s views would have been the repeal of the New Deal, many steps backward on equality for women and minorities, and a narrowing of political power to already-favored groups. A society I did not recognize and had not lived in would have been preserved in amber.
Bork was not shy about these views; on the contrary, he wrote and spoke them frankly and frequently. Justice Scalia, very much Bork’s intellectual twin, still holds the same sorts of views on interpreting the Constitution; Scalia, though, has gradually backed away from strict “originalism” to what he calls “textualism.” When he speaks publicly and is challenged on whether his views would, in fact, give him the basis for repealing the New Deal, the regulatory state, and the like, I have heard him say, “I’m a textualist. I’m not a nut.” I can only imagine Bork’s scowl upon hearing that. Bork would not have considered himself a nut, but he would have had — did have — the guts to be consistent. He meant what he said.
Thus it was no surprise that Bork’s nomination to the Supreme Court attracted opposition fiercer than anything ever seen before. His chance to be a justice — to enjoy what he told the Senate Committee would be “an intellectual feast” — went down to defeat, 58-42.
Personally, I was not surprised. Quite aside from his views, which were then very far from the mainstream of even conservative legal thought, he was the same person in front of the Judiciary Committee as he had been in the classroom: an intellectual titan, but dry, harsh, seemingly unmoved by human concerns. I did not know the man personally; by all accounts of those who did, he had a warm and human side. But no Senator saw it, and his manner played right in to the efforts to defeat him as a cold-eyed elitist.
Bork lived out the rest of his life as a public intellectual, writing books and giving speeches. The defeat embittered him, and he became a moral scold.
But, in his time, he mattered, and his defeat mattered. In my next post, I’ll discuss why.