Reflections on the Passing of Robert Bork (Part 2)

One of my judicial heroes, Robert Bork, passed away on December 19, 2012. Nearly a year has transpired since his death. Because of my hectic schedule and only recent birth of my new blog, I have not yet had the opportunity to fully articulate my thoughts on the significance of the life and career of Robert Bork toward American culture and jurisprudence. Therefore, I hope the reader will indulge me as I do a little reminiscing.

Robert_BorkIn my last article, I explained how and why the 1987 Bork nomination was derailed by the Democratically controlled Senate Judiciary Committee. In this article, I briefly examine the societal residuals of an injustice committed against a good and decent man back in 1987 that remain with us decades later.

The derailed Bork nomination has had several long standing effects on our society. First, it has become common place for all conservatives nominated for prominent positions within our judiciary to face unmitigated slander during the nomination and confirmation process. Examples of such victims include Clarence Thomas, Charles Pickering, Janice Rogers Brown, and Samuel Alito.

Second, because of the contentiousness of the battle, it has become increasingly difficult to get an originalist nominated to the bench. With a Democratic President there is zero chance. All of Clinton’s (Breyer and Ginsburg) and Obama’s (Sotomayor and Kagan) nominees have one thing in common: each of them could care less about what the Constitution actually says. During their confirmations they typically give long-winded discourses about empathy, compassion, and fairness, but say very little about the Constitution’s original intent. Any future nominee whom Obama puts forward is virtually guaranteed to have the exact same mentality and philosophy. With a Republican President, you have at least one in two chances of getting an originalist nominated. Although Reagan nominated originalists Anthony Scalia and Bork, he also nominated non-originalists Sandra Day O’Connor and Anthony Kennedy. O’ Connor was Reagan’s first nominee since he was making good on a campaign promise to place the first woman on the High Court. Many believe that Bork would have sailed through the confirmation process had he rather than O’Connor been nominated by Reagan first. While G.H.W. Bush (America’s 41st President) nominated originalist Clarence Thomas, he also nominated non-originalist David Souter. While the younger Bush nominated originalist Samuel Alito, he also nominated John Roberts, who was recently instrumental in upholding the constitutionality of Obamacare to the strained incredulity of most High Court watchers. In fact, such a split record, has been a pattern of Republican Presidents for some time. While Richard Nixon gave us originalist William Rehnquist, he also gave us Harry Blackmun, the author of the majority opinion in the infamous Roe v. Wade decision.

Third, Bork’s failed nomination made him a household name in his latter years. In fact, his name is now commonly used as a verb rather than a noun to describe presidential nominees who do not survive the confirmation process. However, this newfound fame made Bork a respected and best-selling author thereby giving him the ability to bring numerous issues of importance before the American people. Bork did this in his books “The Tempting of America” and “Slouching Towards Gomorrah.” In his final book “Coercing Virtue” he warned almost prophetically of the current trend among judges who base the authority for their rulings on international sources of law rather than upon the American Constitution.

Robert Bork was a man of uncommon excellence who was persecuted due to his common sense approach to Constitutional Law. Had his ideas had a greater influence over the minds of our judges, they likely could have spared us from the fiscal cliff and crisis that we are on the precipice of hurling over. America’s looming national debt currently stands around the 17 trillion dollar mark. Now Bork speaks to us from the grave through his many writings. Unlike the Senators who sat in judgment on him back in 1987, this time Americans should listen before it’s too late.

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