This is Part 1 of a sympsoium on the work of Judge Robert Bork and the publication of A Time to Speak.
When Robert Bork burst onto the national stage in July of 1987, he had already enjoyed a distinguished career as a scholar and public servant, though his last name had not yet become a verb that could be found in the pages of the Oxford English Dictionary. The rest, as they say, is history.
The release of Bork’s latest book, A Time to Speak, offers citizens of this constitutional republic the perfect occasion to think clearly about things which, we can assert, they have a duty to think about. Who among us—of a certain age, at least—can forget our current Vice President’s role in derailing the Bork nomination, including the risible assertions contained in the report he commissioned to carry out, at any cost, the derailing? Or Teddy Kennedy’s not quite measured claims that, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and” . . . and indeed.
The Bork nomination was a watershed event, one of those “eureka!” political moments for so many people, me included. I was at the time a young, freshly minted attorney who saw clearly in the Bork hearings something that I had already intuited to some degree, but which had been cleverly obfuscated by three years of legal education. I came to know—in a visceral, publicly televised, in-my-face sort of way—that there was something truly rotten about the manner in which a lot of people view the Constitution, including the constitutionally appointed gatekeepers of the federal bench.
As the Obama administration licks its chops at the prospect of appointing judges who, in the words of our President, have “the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old,” Robert Bork is, in certain respects, one of those belonging to what Joseph Story in the 1830s called “the old race of judges.” He might well be one of the last survivors of that race that cares about constitutional originalism—those who rely on constitutional text, tradition, logic and structure to come to their determinations, rather than on an ever-evolving model of a “living” Constitution that grows and flourishes so as to sanction, or indeed require, the latest innovations that the elite avatars of cultural radicalism can demand.
Aside from being a vital prod to informed reflection on the politics of judicial nominations and constitutional originalism, Bork’s book also proves to be essential reading for anyone interested in the full range of his thought. Included within its covers are some of Bork’s constitutional briefs and oral arguments, his opinions as a federal appellate judge, his articles and essays on everything from antitrust law to international law to natural law, and a few memorials and remonstrances that show the author’s wit, wisdom, and humanity.
Bork holds up inconvenient truths to those who would embrace the version of judicial progressivism that claims “enlightened” interpretation of a living constitution is really more democratic than strict construction. Do the better angels of our nature really want to do all the wild and wonderful things that so many judges claim they want to do—from legalizing almost unspeakably murderous forms of abortion, to restricting the normal implementation of capital punishment (a punishment that is four times explicitly mentioned in the Constitution’s text)? If they do, asks Bork, then why don’t they just get on with it, and leave the judges like the Maytag repairmen of old—with nothing to do, and all day to do it in?