May the tributes this great jurist deserves establish his legacy, and may the caricatures fade away.
On the day of his passing, I’m not giving any space or time to the story of the calculated politics of personal destruction and character assassination that destroyed his nomination to the Supreme Court. Historians will give account of that, along with the assassins.
All these years, I continued to slip and almost refer to him as Justice Bork when speaking of him or calling him to arrange an interview. He always deserved that position.
As soon as news broke that he had passed away, commentaries from those who knew him and his record started to emerge. Like this one at First Things.
Bork was a frequent contributor to these pages, never more famously than in “The End of Democracy: Our Judicial Oligarchy,” the lead essay of this magazine’s most famous symposium.
In the piece, Bork wrote: “This last term of the Supreme Court brought home to us with fresh clarity what it means to be ruled by an oligarchy. The most important moral, political, and cultural decisions affecting our lives are steadily being removed from democratic control. Only Justices Antonin Scalia and Clarence Thomas attempt to give the Constitution the meaning it had for those who adopted it. A majority of the court routinely enacts its own preference as the command of our basic document.”
And then looking ahead to the new millennium, he wrote this in 2000:
When law is personalized and politicized, its force and impact are controlled by public relations and private moralities, not by majority preference. We have been on this course for some time, as shown by judicial rule without recourse to law, jury nullification of law, and, perhaps especially, bureaucracies that lay down most of the law that governs us with, at best, minimal accountability to either the people or their elected representatives and without concern for consistency. . . .
There surely has always been an element of this in our use of law, but that element seems to be expanding rapidly. If it is, the “rule of law” and “democracy” in the next millennium will be radically different from the idealized versions of them that most of us carry in our heads.
This First Things piece speaks to a little known side of Robert Bork.
Five years ago, Robert Bork was baptized into the Catholic faith. Accompanied by his saintly wife Mary Ellen, in a chapel bursting with friends, Bork nearly ran the table of sacraments. He got five that day: baptism, confirmation, first confession, first Communion, and his marriage was regularized according to the Church. All that was missing were last rites and priestly ordination.
At the time of his Senate hearings, according to Bork himself, he was an atheist. And here is what I wonder. Would Bork have journeyed to Rome had he served on the Supreme Court? While Mary Ellen’s example and influence would have remained present either way, other influences certainly would have been brought to bear, namely, power, and our tendency to attach ourselves to it. The rich young man went away because he was too attached to his things. How much more alluring is power? How heady is it to be in the very thick of the most important questions of our time; questions that affect hundreds of millions of lives and that reverberate through time even unto a kind of immortality? Wouldn’t the danger of hubris and the Olympian nature of the Supreme Court make such interior considerations difficult, if not even impossible?
But then you read this, from a former law clerk:
Most people think that appellate judges spend their time ruminating about esoteric legal issues in a case, without giving much thought to how their rulings will affect the individuals involved. That may be true of some judges, but it wasn’t true of Judge Bork…
I remember discussing the case with Judge Bork. The night before the parties presented their oral arguments in court, Judge Bork walked into my office to discuss it. He asked not just about what my research had found, but also for my opinion on the case — not something every judge is interested in hearing from a mere clerk.
I told him that I was 90% certain that one of the parties was right on every issue.“Ninety percent is not good enough,” he responded. He went on to explain that he wanted to be certain about what to do in the case, and that he wanted to get it right because what he did affected people.
Judge Bork never viewed cases as just an opportunity for him to issue pronouncements about the law. He believed that his job was to decide each particular case – and to decide it correctly…
Others who clerked for him feel the same way. Judge Bork always listened respectfully to our ideas and recommendations. He engaged us in debate as though we were faculty colleagues — and always with the goal of finding the right answer to any and every legal issue.
Throughout my clerkship and ever since, he treated me and everyone else with dignity…
Having had the privilege of knowing Judge Bork as a person, his death resonates deeply. And it hurts. The legal and conservative communities may have lost a standard bearer. But a small group of us also lost a person whom the public never had the opportunity to know.
NRO editors are trying to help them. Here’s just one:
Judge Bork wore his greatness and wisdom lightly. To many, his appearance, manner, and intellect were intimidating — and certainly did not come across well on television, up against smarmy senators — but to those who bothered to get to know him, he was accessible, witty, perceptive, and likely to say something profound about the state of the world, the law, or the comic “Pickles,” which he loved. Even many who initially opposed his confirmation admitted to me in private in recent years that they regret that he was denied a spot on the Supreme Court. They particularly regretted the hyper-partisan atmosphere that seems to have been ignited by that dispute, and which has lived on and indeed intensified. As for me, I regret not spending more time with him, because every moment with Judge Bork was fun and enlightening. Rest in peace.