Teddy Kennedy and other members of the political and cultural left crucified Robert Bork when he sat before the Senate Judiciary Committee in 1987 for confirmation to the Supreme Court. It was a watershed event in the sullying of our politics, a personal hardship for Judge Bork, and perhaps the greatest disaster for American law and policy in the latter half of the twentieth century.
The court did not just lose one of its greatest minds; Bork was replaced by Anthony Kennedy, a much lesser light who has consistently voted dead wrong on a whole host of important cases. We had every expectation that a Justice Bork would continue the restoration of the court after the long drift of anti-constitutionalism. Though Bork was probably not pro-life at the time, he was clearly anti-Roe. And we expected he would assist in overturning that monstrous decision. Even after Anthony Kennedy was announced, we were assured that he was a conservative and a good Catholic. We were told that his wife was a volunteer at a crisis pregnancy center. Though not in the same intellectual league as Bork, at least Kennedy would help get rid of Roe. Not so.
Kennedy voted for the 1992 Casey decision upholding Roe. He is also widely thought to be the author of this disastrous decision with its crazy “mystery passage” which defines personal liberty as the constitutional right to “define the universe” and the “meaning of existence” – more specifically, to define the unborn child out of existence. It was a passage used again by Kennedy in the Lawrence v. Texas decision making homosexual sodomy a constitutional right. Though he voted to uphold the ban on partial birth abortion, it is not at all clear that he would ever vote to overturn Roe. And it is likely that Lawrence will be used one day to uphold homosexual marriage. Bork would have been a bulwark against these ideas; Justice Kennedy more than abetted them.
What about Bork? He resigned from the federal bench, went on to write best-selling books, continued teaching, became a popular lecturer, and one of the most important and influential figures in American conservatism. This, however, was a different life than he would have led had he been confirmed for the Supreme Court. He said to the senators that day that the Supreme Court would be, for him, an intellectual feast. Indeed, it would have been and would have placed Bork at the very center of every crucial decision affecting America and the world beyond. Bork would have been – I hope he’ll pardon the expression – Olympian.
Bork has referred to judges as Olympians, and not as a compliment. By that he means those judges around the world who have decided that they, and not elected representatives, should rule. Bork has a different, more limited view of the role of a judge. Even so, being a member of the Supreme Court is Olympian, a chance at a kind of secular immortality given to very few. Bork did not get this; he got something else instead.
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?
There is another puzzling question. With Bork on the court, Roe might have been overturned in 1992. But on the court Bork might not have found God and the Church. I don’t even know how to think about that except in light of the shepherd who left the ninety-nine sheep to find the single lost one. The Church teaches that a single soul is worth more than the whole universe. Figure that one out, Christopher Hitchens.
A more pleasant thought: Is it possible that Robert Bork lost the whole world – the court and all that meant – but gained his soul?