I don’t usually speak ill of the dead but there are exceptions to every rule and Robert Bork ticks off many of the boxes on my speak ill of the dead checklist.He died today at the age of 85.

The first time I ever heard of the wingnutty legal scholar was when he did Tricky Dick’s dirty work and fired Watergate Special Prosecutor, Archibald Cox. That was the originalist’s original sin in my book.

I was in law school when Reagan nominated Bork to the Supreme Court. Our faculty was largely liberal but there were some pretty good debates in the hallways about Bork’s merits and demerits. It was a time when it was possible to have semi-polite discussions with conservatives. One of my best friends in law school was, and still is, a raging right-winger, non-wingnut division, and we had some heated arguments about Bork but extinguished them with beer. He once asked me why “my ilk” was so opposed to Bork and I forget what I said but Paul Campos summed it up pretty darn well at Salon today:

Bork had become accidentally like a martyr, and he cashed in, quite
literally, on his supposed victim status, writing a couple of
best-selling books decrying the moral degeneracy of contemporary
America, and living large on what has been referred to indelicately as
wingnut welfare.

This narrative was always a bunch of nonsense, and although de mortuis nil nisi bonumis a maxim of our profession, the memory of the deceased will not be spared here.

Bork’s nomination was defeated because over the course of his career
he supported a number of legal positions that became, over time,
extremely unpopular with the American public as a whole. For example, he
defended the idea that states should be free to enforce Jim Crow laws,
and opposed the Civil Rights Act of 1964
on the grounds that using federal law to dismantle the apartheid legal
code of the post-Reconstruction South was both unconstitutional and
morally wrong.

Unfortunately for him, by 1987 the idea that it was
OK to use state violence to remove black people from segregated lunch
counters wasn’t the kind of idea that was still acceptable in polite

Similarly, Bork’s view that a state ought to be free to
criminalize the purchase of contraception by married couples was by that
point in American history considered, to use a legal term of art, kind
of wacky.

I recall being thrilled when Bork’s nomination went down in flames. Ted Kennedy, quite appropriately, got much of the credit with his kick-ass attack on the nominee:

As Chairman of the Judiciary Committee, Joe Biden also helped kill the Bork nomination with dogged research that resulted in devastating questions. Every time some winger calls the Veep stupid, I bring up his role in Borking Bork. It looked for a time as if Joey the Shark would ride this episode to the White House in 1988 but it was not meant to be. I’m still pretty sure that either Biden or Gephardt could have beaten Poppy Bush that year and thereby prevented W’s reign of idiotic error and terror, but we’ll never know.

Anyway, I’d like to thank Joey and Teddy for keeping Bork off the Supreme Court. Since Professor Campos slipped a Warren Zevon reference into his post, I’ll let WZ have the last word:

5 thoughts on “Borked

  1. Bork failed to be confirmed because he stated his views directly and confidently, and although logical, they were appalling.
    I will give him this: For many years, he argued that the Second Amendment did not prevent the Congress from regulating the use and sale of firearms. Unfortunately, as in his dead-of-night firing of Cox, he changed his mind and slipped a pro-gun amicus brief into the 2008 Heller case in which the Supreme Court apparently decided that all 310 million Americans, with their close to 300 million firearms, their gun fetishes, their feelings of aggrieved macho victimhood and their frequently untreated mental illnesses, constituted a “well-regulated militia.”
    I frequently heard that he could be charming in person. And, if we weren’t arguing constitutional law, perhaps I would have enjoyed having a beer with him. But he was a constitutional sociopath, and if you’ll excuse the metaphor, the country dodged a very large and destructive bullet when he failed to win confirmation.

  2. I’ll never be one to defend Bork, many of the reasons you have already named.
    But in looking back, I wonder if Watergate followed by Bork didn’t set the stage for the repubs now looking for revenge.

  3. I will forever associate Robert Bork with shit. Literally.
    The Michael Moore show TV Nation ran a report on how New York City deals with sewage and part of the report included person-on-the-street interviews with people, once of whom by happenstance was the judge.
    If I remember right, he said something about how he’d never considered the question (what happens to the waste you flush?) and would never consider it again.
    For the record, the report said solid waste, after processing, ended up being sold as fertilizer in Texas, I think.

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