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The Loss of Robert Bork Print E-mail
By Hadley Arkes   
Tuesday, 09 October 2012

The crisp chill of October has brought memories of Octobers past. Writers on law have now been noting that this month marks the twenty-fifth anniversary of the hearings that demeaned the U.S. Senate and denied to Robert Bork his place on the Supreme Court.

The Reagan Administration had been caught unprepared for the kinds of calumnies that were showered on this accomplished jurist and this generous, large-natured man. The Assailant-in-Chief was Sen. Edward Kennedy, first out of the box with the most unmeasured denunciation:  “Robert Borks’s America,” he said, is one in which “women would be forced into back-alley abortions.”  

Kennedy was not constrained by the fact that he knew little in detail about the cases or the principles of jurisprudence that constrained judges.  But in that respect he was more than outdone by the Chairman of the Judiciary Committee, one Joseph Biden.

In facing Robert Bork, Biden would confront a former professor who had marked off for himself a strong definition as a legal “positivist.”   Positivism refers to the laws that are “posited” or enacted by people who claim the authority to have their edicts treated with the force of law.  

The tradition of natural law had always recognized the need to translate the principles of natural law into “positive regulations” that bore on the landscape and the circumstances before us. But positivism took on a different meaning when it was detached from any ground of moral truth – when lawyers and judges insisted that they found in the positive law itself the measure of right and wrong.

Faced with Bork, a strong positivist, Biden marked off for himself a strong position in natural law:

As a child of God, [he said] I believe my rights are not derived from the Constitution. My rights are not derived from any government. My rights are not derived from any majority. My rights are because I exist. They were given to me and each of my fellow citizens by our creator and they represent the essence of human dignity. [Emphasis added.]

I had the occasion, several years ago in these columns, to cite those lines and to note that they cut against Biden’s position in defense of abortion. James Wilson, one of the preeminent minds among the framers of the Constitution, said that if we have natural rights, they begin when we begin to be, and that is why the common law cast its protections over human life from the first stirring in the womb.

          The Honorable Robert Bork

The contradiction made little impression on Biden, and four years later he just as readily abandoned a stance of natural law. Faced with Clarence Thomas, who took “natural rights” seriously, Biden warned that judges with that perspective would not support the regulations necessary for the economy.

Robert Bork thought that legislatures were free to protect the child in the womb because he found nothing in the Constitution that barred that authority and provided a “right to abortion.” But of course the Founders understood the Constitution as a structure of power, built on certain moral premises, not as a compendium of rights. James Wilson said that the purpose of the Constitution was not to invent new rights, but to secure and enlarge the rights we already had by nature.  And no one expected that it was possible to set down in the text all of those rights that the Constitution was meant to secure. 

Bork’s argument against abortion would not be the argument that others of us would make, arguing for the defense of the child in the womb on the moral premises marking the natural law – the same premises that underlay the Constitution itself.

But Bork, as a jurist, offered a steady example of the “laws of reason,” or the canons of logic, brought to bear on cases in law in a disciplined way. In that respect, he gave us an elegant example of how a jurisprudence of natural law could be done while professing up and down that it could not be done.  And with the same wisdom that ran beyond his theory, those powers of reasoning would later bring him into the Church even while his scoffing at natural law remained undiminished.

Other nominees to the Court have been defeated for confirmation, but none has vindicated himself as grandly as Bork, or made his adversaries look so small, as his writings drew a wider and wider audience, and his teachings gained a new army of adherents among young lawyers.

One fine lawyer and writer, Adam White, has written recently in Commentary that Bork had won: that his theory of  “originalism” had prevailed in judicial interpretation.  I’m afraid not.  It’s a longer story, but there are now too many theories of “originalism,” at war with themselves, and they are now being taken over and molded by the Left. 

And on the cases of greatest moment, such as Obamacare, “originalism” has made little difference. The sober truth of the matter is this: If Robert Bork had taken his place on the Court, Roe v Wade would have been overruled in 1992. His replacement, Anthony Kennedy, has been an active engine in extending the premises of gay rights, giving grounds for the courts to install same-sex marriage in Massachusetts and other states. And he has brought us now to the threshold of the Court imposing same-sex marriage on the country.  

Robert Bork did not win.  Every additional step by Anthony Kennedy, advancing the project of the Left, shows the continuing yield of what Joe Biden and his friends accomplished. For Biden and Co., the defeat of Robert Bork is the gift that never stops giving.

Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College and the Director of the Claremont Center for the Jurisprudence of Natural Law in Washington. D.C. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law.
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Comments (7)Add Comment
written by Jack,CT, October 09, 2012
When people say you vote on one issue ABORTION, I say "YES".
written by Manfred, October 09, 2012
"Biden warned that judges with that perspecrive would not support the regulations necessary for the economy." Is the reader to infer from this sentence that abortion was considered necessary for the economy? I am only trying to be clear. I noticed, Dr. Arkes, that not once in your excellent column do you cite the fact that Biden, Kennedy and Anthony Kennedy are referred to in some circles as being "catholic" (sic). Thank you! While Bork and Thomas were facing their interrogations, the bishops were working hard on Communion reception while standing, Communion in the hand, women in the Sanctuary, female altar servers, First Communion before first Confession and other "serious" items which effeminate men do to busy themselves. (And they have to have a three week Synod in Rome to discuss where all the ADULTS in the Church have gone?)
written by Grump, October 09, 2012
Well said, professor. Such accolades are well-deserving. Mr. Bork is a man of towering intellect and integrity.

One of his quotes is most revealing: "I don't think the Constitution is studied almost anywhere, including law schools. In law schools, what they study is what the court said about the Constitution. They study the opinions. They don't study the Constitution itself."

His seminal book, "Slouching towards Gomorrah," was profoundly insightful. A few quotes from the book:

"Analysis demonstrates that we continue slouching towards Gomorrah. We are well along the road to the moral chaos that is the end of radical individualism and the tyranny that is the goal of radical egalitarianism. Modern liberalism has corrupted our culture across the board.” (p. 331)

"If there are signs that we have become less concerned than we should be with virtue, there are also signs that many Americans are becoming restless under the tyrannies of egalitarianism and sick of the hedonistic individualism that has brought us to the suburbs of Gomorrah. But, for the immediate future, what we probably face is an increasingly vulgar, violent, chaotic, and politicized culture." (p. 342)

Robert Bork concludes his book with these words: "As we approach its desolate and sordid precincts, the pessimism of the intellect tells us that Gomorrah is our probable destination. What is left to us is a determination not to accept that fate and the courage to resist it—the optimism of the will." (p. 343)

written by jsmitty, October 09, 2012
Good piece Dr. Arkes. I must say as a young undergraduate freshman in college with decidedly liberal views, the whole intellectually dishonest manner in which the Democrats handled the Bork nomination led me into the GOP for years.
But now as I look back on it, I think it was Reagan who deserved part of the blame for what happened. If Reagan had appointed Bork first instead of O'Connor he surely would have been confirmed. I think Scalia could have been confirmed by the 1986 Senate class as well.

Also Bork in retrospect did not handle his nomination well. As an academic he tried to turn the hearings into a debate on the finer points of jurisprudence, which was silly. But when facing a newly elected Democratic Senate majority, it would have been much better to fly with his flags lower. At least it would have been wise to downplay some of the statements he had made in an academic context years earlier. When asked "does the Constitution guarantee the "right to privacy" he should have said "yes, there are many aspects of personal privacy that the Constitution protects" and then been very vague about the specifics. But Bork's confrontational answers made it hard to keep the support of guys like Howell Heflin and Arlen Specter whose votes should have been gettable.

And overall, I now see Bork's ideas as very passe. As a reaction against the activism of the 60's and the 70's, his ideas were at least consistent, easy doctrines to teach and so made sense as an ad hoc response to the Left. But since then the waters have become alot more muddied and the need for a more forthright intellectual defense of a natural law jurisprudence as a replacement for his (and Scalia's) stale positivism has never been more needed. Frankly conservatives these days have less to worry about with unelected courts and far more with the changing sands of American political opinion on say gay "marriage", which someone like Bork today is useless against.

I really think Bork's time has come and gone.
written by Tony, October 09, 2012
Thank you, Hadley. Until I read your column from several years ago, I thought I was the only person in America who remembered what Joe (from my home county) Biden had said in both proceedings, and how the one contradicted the other. I guess I could never expect that Mother Times would have noticed. Heck, Mother Times doesn't even read Mother Times anymore.

One thing we should all remember: nobody had ever witnessed a politicized SC nomination before. What happened to Bork had no precedent in anyone's memory; for all I know, it had no precedent in US history. What we now have is a perfectly useless Senate functioning as an electoral college to confirm the nomination of a few lawyers to the Archonate. The executive branch decrees; the judicial branch legislates; the legislative branch rots.
written by Graham Combs, October 10, 2012
I'm sure that Judge Bork has his young adherents in the law schools. But as you admit, Bork lost, we lost. When I was in law school the Federalist Society was very well behaved.
written by Brian English, October 10, 2012
"If Robert Bork had taken his place on the Court, Roe v Wade would have been overruled in 1992."

A point I rant about whenever I am confronted with Catholics who justify voting for Democrats like Kennedy and Biden by accusing the GOP of doing nothing on abortion.

"Frankly conservatives these days have less to worry about with unelected courts and far more with the changing sands of American political opinion on say gay "marriage", which someone like Bork today is useless against."

Didn't unelected courts overturn Proposition 8?

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