No one who actually lived through the Senate Judiciary Committee hearing in September 1987 is without views on the subject, and I have previously offered mine. I think that the televised hearing, which held the country spellbound, provided a rare and valuable public seminar on the meaning of the Constitution, the methods of constitutional interpretation, and the different answers that competing methods offer to the most profound questions of individual autonomy and equality.... [What] “borking” really amounted to was holding the nominee’s vigorously expressed views up to the light for public inspection. In five days of testimony, then-Judge Bork – a former professor of mine whom I liked and respected – had every opportunity to make his case. His ideas were fully aired and considered. By a vote of 58 to 42, the senators, having heard from their constituents, concluded that his constricted constitutional vision, locked into the supposed “original intention” of the framers, was not what the country needed or wanted.... I [later] asked [Bork] whether, at any time during the hearing, he had felt that a member of the Judiciary Committee had met him on his own level in serious constitutional conversation.
“No,” he answered. “Not even Arlen Specter?” I asked. “Specter had his mind made up from the beginning,” he snapped. I knew that wasn’t true.... Specter, a Pennsylvania Republican, had in fact agonized over his vote, as I knew from having talked with him almost daily. A Yale Law School graduate and former prosecutor, the senator went head to head with the nominee through several rounds of questioning, hours of mesmerizing constitutional debate in which he probed for any sign of flexibility in Judge Bork’s view that the entire course of modern constitutional law was profoundly mistaken. Finding none, Senator Specter, who had assumed at the start of the hearing that he would vote for confirmation, decided to vote No.... Five other Republicans followed....
Bork couldn’t accept the legitimacy of his defeat.... Bork was hardly unique in his sense of entitlement, but it ran so deep that it prevented him from understanding the obvious dynamic of what happened....
Senator Hatch served up what sounded like a concluding, softball question: “In your lengthy constitutional studies, is there any Supreme Court decision that has stirred more controversy or criticism amongst scholars and citizens than that particular case [Roe v. Wade]?” Then came the unexpected answer: “I suppose the only candidate for that, Senator, would be Brown v. Board of Education.”... As Senator Hatch immediately grasped, the nominee had violated a cardinal rule of modern judicial confirmation hearings, which is that Brown v. Board of Education is beyond debate. The 1954 school desegregation ruling was in fact the subject of substantial criticism within the legal academy in the 1950s and well into the 1960s; some eminent professors, while endorsing the outcome, took strong issue with the court’s analytical method. Awareness of the rich critical literature from that period had faded away by 1987, effaced by the decision’s celebrated unanimity and moral weight. So while Judge Bork’s answer to Senator Hatch was historically accurate, it was an obtuse accuracy. More to the point was how the moral dimension seemed to elude him as he tossed Brown into the same box with the abortion decision of which he had been so scathingly dismissive....
I see him as a tragic figure: not because he was dealt an unjust hand – he wasn’t – but because of his inability to understand what happened. He spent his final decades surrounded by acolytes who stoked his sense of victimhood, and there seemed to be no one around him to provide a reality check as his rants about the Supreme Court’s depredations and the collapse of Western civilization (he portrayed the two as inextricably linked) became ever more extravagant.... By 1996, in “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” he was taking aim at Darwinian evolution and embracing “intelligent design,” evidence for which he later called “overwhelming.” “A Country I Do Not Recognize,” a book he edited in 2005, found him plunging ever deeper into the culture wars, with the Supreme Court as his main target. His introductory essay charged that “the Supreme Court’s unconstitutional rulings” were “an attempt to remake society and thus to remake man himself.” He complained about the court’s embrace of “radical individualism” and its “destruction of taboos about vile language.” He wrote, “Our culture’s abandonment of a sense of the sacred, an abandonment greatly facilitated by the Supreme Court, is a heavy loss,” adding in a tone of angry despair: “Almost every value, every virtue, every symbol, and every institution that was once taken as sacred, not to be overthrown in practice, has now been overthrown or is in question.” In 2010, he declared his opposition to Elena Kagan’s Supreme Court nomination, bafflingly calling her admiration for Aharon Barak, the distinguished former president of Israel’s Supreme Court, “disqualifying in and of itself.” Ms. Kagan had described the Israeli judge, internationally known for his human rights decisions, as her “judicial hero.”...
The pre- and post-nomination Robert Bork were one and the same, with the later version simply having lost the need for discretion. So perhaps his defeat didn’t so much change him as free him from inhibition. When the Senate rejected his backward-looking vision and instead embraced Anthony Kennedy, who praised the Constitution’s framers for having made “a covenant with the future,” it was no tragedy for the country. But it was for a man, and it’s important to know the difference.
