September 9, 2018


The Original Originalist: Thirty years after Robert Bork was denied a seat on the Supreme Court, his formidable legacy lives on. (Mark Pulliam, Summer 2018, City Journal)

As a stoical Robert Bork sat before the Senate Judiciary Committee on the morning of September 15, 1987, surrounded by reporters, klieg lights, and television cameras, the 60-year-old jurist could look back on an accomplished career. For five and a half years, he had served on the D.C. Circuit, considered the nation's most prestigious court other than the U.S. Supreme Court. Bork had also been a marine, a successful antitrust litigator, a law professor, solicitor general, and acting attorney general of the United States. But as he faced committee chairman Joe Biden and his hostile Democratic colleagues, including Ted Kennedy, Howard Metzenbaum, Robert Byrd, Patrick Leahy, and Paul Simon, the cerebral Bork was ill-suited--and disinclined--to duplicate the dramatic performance given in the same hearing room a few months earlier, when the telegenic Lt. Col. Oliver North parried with a joint congressional committee investigating the Iran-Contra affair. Against the urging of his handlers, and with his nomination to the U.S. Supreme Court by President Ronald Reagan hanging in the balance, Bork made no attempt to emulate North, believing that such rhetorical flair was undignified for a judge.

Instead, during an unprecedented five days of grilling, Bork chose to answer the committee's questions "matter-of-factly" and to explain his view of judging "fully." The media coverage, featuring the judge's lengthy, dispassionate responses, failed to rally the American public in his favor, unlike North's gripping testimony. Ultimately, despite Bork's stellar credentials, the Senate voted him down, largely on party grounds--an outcome that coined the now-ubiquitous term "borking."

Bork's defeat was a watershed event in judicial politics, and reverberates still--it prevented a conservative realignment of the Court (due to the appointment of moderate Justice Anthony Kennedy in place of Bork) and forever transformed the judicial-confirmation process into an ideological gauntlet. No High Court nominee would ever again be as forthright, or be denied confirmation for such transparently ideological reasons. Ironically, the Senate's rejection of Bork--due to his steadfast advocacy of judicial restraint and sticking to the constitutional text--did not prevent the ascendancy of his brand of "originalist" constitutional theory and, in fact, may have bolstered it, by giving him a bully pulpit that he would use effectively for the rest of his life. [...]

Prior to originalism's triumph in the 1990s, these liberal constitutional theories held sway, and throughout the 1970s, Bork was their main antagonist. In a 1979 article in the Washington University Law Quarterly, Bork mocked the liberal position as seeking "to create rights by arguments from moral philosophy rather than from constitutional text, history, and structure. The end result would be to convert our government from one by representative assembly to one by judiciary." Some of the doctrinal innovations advocated by the Left--such as welfare rights, comparable worth, busing, and abolition of capital punishment--thankfully faded into oblivion along with other 1970s fads, including bell-bottoms, leisure suits, and sideburns. But many others remained, and continue to this day, as part of the Left's long march through legal academia.

Rejecting the idea of judges legislating from the bench, Bork believed that judges should instead play a limited role: to enforce the Constitution as written. This approach--often expressed as "judges should interpret the law, not make it"--has, over time, been referred to variously as strict construction, original intent, interpretivism, judicial restraint, textualism, and originalism. The labels, and even the fine points of application, are less important than the general orientation.

In Bork's view, the Constitution derives its moral authority, as law, from the fact that the states ratified it. Accordingly, its text should be interpreted as it was understood at the time of its adoption. Judges have no warrant to expand upon the constitutional text--or to invent new rights--just because they favor the result in a particular case. Judicial power, unless constrained by the Constitution's original meaning, will become excessive, usurping power properly reserved to the elected branches, or the people. When judges exceed their proper role, by recognizing "liberties" not credibly drawn from the constitutional text or history, they diminish citizens' most important freedom: the right to govern themselves in a representative democracy.

Bork's position, consistent with Alexander Hamilton's conception of the judicial role in Federalist 78, seems as though it shouldn't be controversial, but it directly challenged the dominance of the legal professoriat and the liberal interest groups that benefited from judicial activism. As Bork framed the issue: "Either the Constitution and statutes are law, which means that their principles are known and control judges, or they are malleable texts that judges may rewrite to see that particular groups or political causes win." While Bork was not the only conservative in legal academia, he was certainly the most influential--and articulate--advocate for originalism. From its inception in 1982, Bork was also conspicuously associated with the Federalist Society, a conservative legal organization, both as a speaker and as cochairman of its board of visitors.

Posted by at September 9, 2018 7:13 AM