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Epstein on Bork:

In the latest issue of Regulation, Richard Epstein has a scathing review (go to page 3) of Robert Bork's latest book, a collection of his writings over several decades:

what is so striking about Bork's collection of ipse dixits is that they never rest on the close and careful reading of text that the originalist method mandates. Thus, the real indictment of Bork lies not in the views that got him into such hot water in his 1987 confirmation hearings. Historically, the regulation of contraception was subject to state regulation under the police power, notwithstanding Justice William O. Douglas's artful invocation in Griswold v. Connecticut of "penumbras" of the Bill of Rights. What really makes Bork a disappointing constitutional scholar is that his moral self-indulgence has led to an utter lack of intellectual discipline.

So this review ends by pointing out this historical irony: When Bork was constrained by the institutional requirements of the judicial role, his evident intellectual and stylistic talents shone through. He was an excellent judge. Indeed, had history been kinder to him, he would have been a distinguished Supreme Court justice because his temper would have been held in check by the norms of his office. But I couldn't persuade a soul of the soundness of that counterfactual judgment if one took his extrajudicial writings as a barometer of probable judicial performance.

Sadly, it is easy to explain why a great antitrust scholar has had so little influence in constitutional law. Bork may think it is time for him to speak out on constitutional issues. But most people will just tune him out, and for good reason.

Harsh, but not unfair. I often describe Bork as "an originalist who seems to have little interest in history," but who instead uses originalist arguments to support a preconceived ideology of judicial restraint and social conservatism.

Jon Roland (mail) (www):
I have never regarded Bork as a true originalist, although I admire some of what he has written. Unfortunately, by becoming so prominent, he has allowed others to portray him as the standard bearer of originalism, whereas the standard is borne more consistently by many of those on our People page.
7.10.2009 1:54pm
cbyler (mail):
I am shocked, shocked, to think that someone would use originalism in bad faith to support preconceived ideologies!

What is unusual about Bork is not that he does this, but that he is bad enough at it to be caught at it.
7.10.2009 2:04pm
S. Lubet (mail):

He was an excellent judge. Indeed, had history been kinder to him, he would have been a distinguished Supreme Court justice because his temper would have been held in check by the norms of his office.


Even if it is accurate that Bork was an excellent appellate judge, there isn't much reason to think that his "temper would have been held in check" had he been seated on the unreviewable Supreme Court.
7.10.2009 2:18pm
Michael Masinter (mail):
Epstein errs by assuming that the same constraints that held Bork in check while he sat on the D.C. Circuit would have continued had be been confirmed. Judge Bork operated within constraints set by the Supreme Court's rulings; if he did not, he risked reversal. A Justice Bork would not have operated under that constraint; amending the constitution to reverse a Supreme Court decision, even one that by all accounts is patently wrong, is difficult business.

Note that the observation is politically neutral; it has nothing to do with where an inferior court judge fits on any ideological spectrum. Rather, it is simply an inherent feature of the distinction between the two jobs.
7.10.2009 2:20pm
Bob_R (mail):
Perhaps it is a reaction to the brutal, grossly dishonest nature of his confirmation hearings, but since that time Bork has proven himself to be a remarkably maladroit politician. (E.g. I thought he was going to single-handedly save Harriet Miers nomination by his opposition.) It's almost as if settling scores is all that matters to him now.
7.10.2009 2:20pm
Richard A. (mail):
I agree. In his rather sloppy "Slouching to Gomorrah" book, Bork first says that it is a straw-man argument to accuse him of favoring government censorship and then goes on to state that there must be come way the government can get Madonna songs out of circulation.

Granted, Madonna can be irritating, but censorship on the basis of personal taste is a strange argument indeed for someone who purports to be an originalist.

And of course Randy Barnett has nicely eviscerated Bork's own evisceration of the Ninth Amendment.
7.10.2009 2:27pm
Richard A. (mail):
Also note this passage from "Slouching to Gomorrah":

"I am suggesting that censorship be considered for the most violent and sexually explicit material now on offer, starting with the obscene prose and pictures now available on the Internet, motion pictures that are mere rhapsodies to violence and the more degenerate lyrics of rap music."
7.10.2009 2:42pm
nicestrategy (mail):

Unfortunately, by becoming so prominent, he has allowed others to portray him as the standard bearer of originalism, whereas the standard is borne more consistently by many of those on our People page.


Interesting. IIRC, Bork became the standard bearer because his nomination was most of America's introduction to originalism and judicial conservatives generally. I was a Reaganaut in HS at the time and the prospect that the government could regulate the sex lives of married people was so alien and tyrannical that no amount of history or legal theory could get me to support Bork. The more I learned, the more I came to believe Bernstein's conclusion, that this was a very intelligent man who was plainly reverse-engineering his political preferences and a research paper written some years later only confirmed my impressions.

I understand that many on the right conflated these reasonable legal qualms with the superfluous nonsense like his video rental records and came to believe that he was the victim of the century. The net effect of all this has to cast doubt on the intellectual honesty of most judicial conservatives. So, while some on the right see the Bork nomination as a missed opportunity and share his bitterness, I would argue that was a disaster for judicial conservatives to have a pompous and condescending fraud hide behind his IQ as it has cast a penumbra of hypocrisy onto an entire generation of jurists.

It's a stereotype (one reinforced by Scalia's tenure, frankly) and stereotypes are unfair, yes, but us non-legal commoners aren't going to wade in to the details all that often. Moreover, the evasive non-answers that most nominees have felt compelled to provide in subsequent confirmation hearings has only strengthened the perception that one side in the judicial/culture wars was dishonest in pretending that they were apolitical arbiters of the law. I'll give Thomas credit for choosing to share his feelings about at least one "silly" law he was voting to uphold on legal grounds. Bork's political views showed no sign of any moderation, and when questioned about his ability to set aside his obviously deeply-held beliefs when acting as a judge he acted like the question was an affront to his dignity. Right. His record of the past 20 years has confirmed that this mistrust was well-placed.

Basically what I'm trying to say is that Bork was and has been such an ass that it poisoned the well for many who followed him. And surely there have been many other conservatives who also use principled-sounding arguments to reverse-engineer the outcome they prefer, just as surely many liberals have. The legitimate criticisms of Warren Court liberalism were clouded by the Bork nomination by making them all seem like some big fancy bullshit game, proving that both sides would reverse engineer as much policy as they could. Or at least that's how it came across to me. Many cases are apolitical by nature, but for those that aren't, if both sides are going to look for legal support of their preconceived ideology, then I'd just as soon strip away the pretense of it being apolitical and have empathy be seen as a worthwhile trait in a Justice.

Bork has been a disaster for conservatives. I'm pleased to see that the more intellectually honest folks here at VC don't treat him like a martyr.
7.10.2009 3:04pm
Alan P (mail):
I believe that Bork was rejected for the Supreme Court more because of his role in the Saturday Night Massacre and the firing of Special Prosecutor Archibald Cox in his own rile as Solicitor General after Richardson and Ruckelshaus, the AG and Deputy, had refused and quit instead, rather than any question of ideology at the time.

That being so, there was still one quote of his at his hearing that has always struck me as showing his unfitness for the job. When asked why he wanted the job by I believe Arlen Spector, he replied that it was to take part in what he termed the "intellectual feast" in arguing cases that were before the Court. To me, and I believe specifically to Spector, that always represented exactly what kind of person you did not want on the Court.

Contrast this with the President's call for empathy which at its most basic I take as the opposite of Bork's view.
7.10.2009 3:49pm
Leo Marvin (mail):
Bork's antipathy for Lochner and his authoritarian social conservatism make him, for me at least, an interesting reference point for the views of right-leaning libertarians. I'm curious, for example, who DB would consider a lesser evil on the Supreme Court, Bork or any of the current four left of center Justices.
7.10.2009 4:52pm
PersonFromPorlock:

Indeed, had history been kinder to him....

Heck, he got to be a verb. How many people do that? Lots become nouns and even more become Justices, but becoming a verb is a rare distinction.
7.10.2009 5:18pm
Mark N. (www):
Apropos of a recent discussion here, having Bork on the court instead of Kennedy would have led to Texas v. Johnson being decided 5-4 the other way, making flag-burning not constitutionally protected speech. Not that Kennedy is much of a consistent libertarian, but he's much better on the First Amendment than Bork, anyway.
7.10.2009 7:04pm
PubliusFL:
What's more, with Bork on the Court Heller might have gone the other way, upholding DC's law with Bork writing a concurring opinion as the only justice refusing to give even lip service to an individual right to bear arms. So there's another issue where Kennedy is better for right-libertarians.
7.10.2009 9:26pm
Cornellian (mail):
Bork, the so-called originalist, is more than willing to repeal the Ninth Amendment by judicial fiat.
7.10.2009 10:15pm
Cornellian (mail):
Also note this passage from "Slouching to Gomorrah":

"I am suggesting that censorship be considered for the most violent and sexually explicit material now on offer, starting with the obscene prose and pictures now available on the Internet, motion pictures that are mere rhapsodies to violence and the more degenerate lyrics of rap music."

Of course. And once we've banned that speech, we can move on to "the most violent and sexually explicit material" among what is left over. And we'll keep repeating that process until you can't say anything that would be out of place on a prime time family TV show in 1955. That's how censorship always goes.
7.10.2009 10:19pm
ArthurKirkland:
Bork's soul seemingly would have been happiest as a high-ranking ayatollah.
7.10.2009 11:21pm
PGE (mail):
I'm a non-lawyer who, many years ago, re-read the constitution just to re-familiarize myself with it. And, when I did, I noticed the 9th amendment, pretty much for the first time. But I found it so interesting that I had never really heard of it before that I read everything I could find of what little had been written about it. So, when Bork was nominated I was horrified. First, because his inkblot theory ignored a judges obligation to at least try to make sense of it (e.g. as a reference to rights retained thru the move from common law to the new constitution.) But, mainly, because his argument is that Jefferson was wrong in saying that we are "endowed by our Creator with certain unalienable rights...". And, whether that's supportable by theory or not, I don't think someone who believes that is suitable for the high court. Not in a country where 99% of the population believes Jefferson was right, even if they read "creator" to mean "nature" or "chance" or whatever.

I'm always amused when I talk to people who use the verb "borked", and I ask them whether they think we're "endowed by our Creator...etc.". They always agree that we are, but tell me i'm lying when I say that Bork disagrees with them.
7.10.2009 11:38pm
Randy R. (mail):
I recall that PBS did a special about the decade of the 60s, and asked Bork if anything good came out of it, and he quickly and unequivocally said "Nothing."

Nothing? LIke civil rights for blacks? Women's rights? awareness of consumer and environmental issues? I think he sees it as one long span of time of just hippies, drugs, sex, hedonism, rock music, jeans, sex, rights for criminals, liberalism, sex, and of course, sex. All the wrong kinds of sex, that is.

As a judge on SCOTUS, I'm fully confident he would do everything in his power to reverse the 60s, which would result in the banning of jeans.
7.11.2009 12:05am
Careless:


Heck, he got to be a verb. How many people do that? Lots become nouns and even more become Justices, but becoming a verb is a rare distinction.

This post made me glad I came here. Finally, "borked" makes sense, even if it's never used in the original meaning
7.11.2009 1:28am
Bucky (mail):
It's kind of piling on at this point, but it is also worth noting that Judge Bork also moved away from his previously expressed views on antitrust when he joined the anti-Microsoft side while the DOJ monopolization suit was ongoing. I was at a discussion where someone asked him why a certain practice was anticompetitive and he responded that if it weren't Microsoft wouldn't be doing it. No economic analysis, no distrust of basing decisions on the allegedly bad motives of the monopolist, nothing of the approach he took in his book. Everyone sort of gasped and someone actually called him out on it. He had no response and it was just kind of sad.

During the hearings (I remember nothing about the ads) it suddenly struck me that he was a judge with no judgment. Whatever his method of applying the Constitution or his intellectual capabilities, he'd managed to get an awful lot of things wrong, like the Civil Rights laws (remember "unsurpassed ugliness?"). That it was all under the pretense of rigorous application of the only permissible method of Constitutional interpretation only made it worse.
7.11.2009 4:43am
Joseph Slater (mail):
This thread reminds me of why I always wonder why some on the political right still claim to be outraged at the way Bork was portrayed in his nomination hearings. He REALLY WAS a nutty extremist, as pretty much everything he's done since shows. Epstein hints at the fallback meme for some, "it was the way he was treated in his hearings that turned him into a nut," but that argument, made explicitly by some, is disingenuous. It was pretty clear at the time he was a nut.

That's not to say every single thing said against him was accurate or fair, but the basic gist was. And we're pretty much all happy he's not on the S.Ct., right?
7.11.2009 11:25am
Joseph Slater (mail):
P.S. I'll say one thing in Bork's semi-defense, though. I honestly never understood why his "intellectual feast" line was considered a bad thing. Don't we want Supreme Court justices to be enthusiastic about engaging in the intellectual challenges of Constitutional law, difficult issues of statutory interpretation, and other tough legal issues? While I thought there were many, many reasons to oppose Bork, I never understood why that was supposed to be one.
7.11.2009 11:29am
Randy R. (mail):
Joseph, I found the comment offensive because SCOTUS often takes up issues that of a very personal nature, such as abortion, right to privacy, gay rights, freedom of speech issues, and so on. To merely reduce them to an intellectual exersice makes it sound iike he doesn't give two whits about the effects of his rulings.

Perhaps that wasn't his intent, and I can understand why you are perplexed -- surely at the level of SCOTUS they deal with very interesting legal issues -- but it just struck me that he has a tin ear when it comes to explaining himself.
7.11.2009 1:02pm
Joseph Slater (mail):
Randy R.:

I guess Bork did have a tin ear, because more people reacted to that line the way you did than the way I did (and from what I've read on this blog, I'm on the same side of the issues you list as you are).

I'm not shedding any tears over it, though, because I still say it was obvious he was an ideological extremist from the git-go.
7.11.2009 1:56pm
Leo Marvin (mail):
I agree with Joseph about the "intellectual feast." It doesn't reduce any issues to an intellectual exercise. If Bork is impervious to empathy, it's not because he finds the issues interesting. Fascination isn't mutually exclusive with any of the conditions you'd find more appropriate, even including empathy. Bork has embraced enough facially obnoxious positions, there's no need to stretch for material to criticize.
7.11.2009 5:20pm
max_fischer (mail):
Epstein isn't entirely fair in his criticism of Bork. From Epstein's article:

But Bork's staunch defense of the democratic process comes to a screeching halt on the question of gay rights, where he wants to ban gay marriage once and for all.

Since when is a Constitutional amendment anti-democratic?

Agree or disagree with gay marriage, Bork's proposal for a Constitutional amendment defining marriage as between one man and one woman isn't inconsistent with Bork's 'defense of the democratic process.' Rather, it's an application of the democratic process.
7.11.2009 5:46pm
Soronel Haetir (mail):
Randy,

I'm not sure about you, but I prefer judges to have a healthy disinterest in the effects of their rulings.
7.11.2009 9:41pm
Randy R. (mail):
"I'm not sure about you, but I prefer judges to have a healthy disinterest in the effects of their rulings."

Of course. But they should also be aware of the effect of their rulings. And indeed, usually they are. For instance, they are often concerned about whether they are giving 'bright line' rules in 4th Amendment cases to police officers and the real world impact upon good police work.

I also agree that Bork is a nut case right from the get-go, and that his feast statement was the least of his problems.

Max: "Since when is a Constitutional amendment anti-democratic?"

Does Bork only want to ban gay marriage through a constitutional amendment? He was totally against the courts overturning the sodomy laws well before Lawrence v. Texas did so. I shudder to think about the things that he has said about gays in the past, and he makes Scalia look like a gay pride participant by comparison. I don't think he would oppose any method to outlaw gay rights.
7.12.2009 1:36am
max_fischer (mail):
Randy: "Does Bork only want to ban gay marriage through a constitutional amendment? He was totally against the courts overturning the sodomy laws well before Lawrence v. Texas did so."

Now you're talking about two different things - the use of the democratic process in upholding traditional marriage and the courts (according to originalists, among others) overstepping their authority in overturning state sodomy laws. The first is democratic, the second isn't.

I'll say it again - Epstein is wrong. The use of a Constitutional amendment to define marriage is democratic. Though Bork may support sodomy laws, he isn't against state legislatures amending their own laws on the issue. He is against courts taking that authority away from the legislature. Big difference.
7.12.2009 4:06am
Randy R. (mail):
True, but he is nonetheless wants sodomy laws to remain on the books and would oppose any efforts by state legislatures to amend them. That he will live with them if they do is nice to know.

But I still stand that he supports any law that would limit gay rights, and would oppose any effort, even if just in the voting booth, that would grant any rights to gays. That's his right of course, but he is also widely respected by people on the right, and that in turns hurts our ability to obtain said rights.
7.13.2009 5:28pm

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