Judge Robert Bork has died at the age of 85.
Bork was best known for his theory that the only way to reconcile the role of the judiciary in the U.S. government against what he terms the “Madisonian” or “counter-majoritarian” dilemma of the judiciary making law without popular approval is for constitutional adjudication to be guided bythe framers’ original understanding of the United States Constitution. Reiterating that it is a court’s task to adjudicate and not to “legislate from the bench,” he has advocated that judges exercise restraint in deciding cases, emphasizing that the role of the courts is to frame “neutral principles” … and not simply ad hoc pronouncements or subjective value judgments. …
He has written, “We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own.”
Roger Kimball writes at PJ Media:
Judge Robert H. Bork, one of the the greatest jurists this country has ever produced, died early this morning from heart complications in a Virginia hospital near his home. …
Bork was a national celebrity. … [His] celebrity was only partly conferred upon him by brilliant legal work and his service as solicitor general and then acting attorney general in the tumultuous Watergate years of the Nixon administration. … By far the most important fuel for fame was the riveting, not to say obscene, attack upon his candidacy for the Supreme Court in the 1980s under Ronald Reagan.
The vicious campaign waged against Judge Bork set a new low—possibly never exceeded—in the exhibition of unbridled leftist venom, indeed hate. Reporters combed through the Borks trash hoping to find compromising tidbits; they inspected his movie rentals, and were disgusted to find the films of John Wayne liberally represented. So hysterical was the campaign against Judge Bork that a new transitive verb entered our political vocabulary: “To Bork,” scruple at nothing in order to discredit and defeat a political figure. Monsieur Guillotine gave his name to that means of execution; “progressives,” those leftists haters of America who have so disfigured our national life since the 1960s, gave us the this new form of character assassination.
The so-called “Lion of the Senate,” Ted Kennedy, surely one of the most despicable men ever to hold high public office in the United States (yes, that’s saying something), stood on the Senate floor and emitted a series of calumnious lies designed not simply to prevent Judge Bork from being appointed to the Supreme Court but to soil his character irretrievably.
“Robert Bork’s America,” quoth Kennedy – “is a land in which women would be forced into back-alley abortions, blacks would sit down at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists would be censored at the whim of government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is often the only protector of the individual rights that are the heart of democracy.”
A breathtaking congeries of falsehoods … In The Tempting of America, Judge Bork recounts his incredulity at this tissue of malign fabrication. “It had simply never occurred to me that anybody could misrepresent my career and views as Kennedy did.” At the time, he notes, many people thought that Kennedy had blundered by emitting so flagrant, and flagrantly untrue, an attack. They were wrong. His “calculated personal assault, . . . more violent than any against a judicial nominee in our country’s history,” did the job (with a little help from Joe Biden and Arlen Specter. Not only was Kennedy instrumental in preventing a great jurist from taking his place on the Supreme Court, he also contributed immeasurably to the cheapening of American political discourse.
In a way, Robert Bork had the last laugh. Ted Kennedy went to his grave a rancid, lumbering, pathetic laughing stock. Bork went from intellectual triumph to intellectual triumph, contributing now-classic studies to the library of legal understanding and penning two of the most important works of social criticism of the last several decades, the aforementioned Tempting of America and Slouching Toward Gemorrah.
And this is from Commentary, by John Podhoretz:
Nothing like the campaign to deny Bork the Supreme Court had ever been seen before. It was a systematic campaign of personal destruction undertaken by liberal interest groups who had come to see the growing conservatism of the Reagan-era judiciary as an existential threat to them. Only a year earlier, Antonin Scalia had been affirmed by a 98-0 vote in the Senate, but in the interim, Democrats had taken hold of the body in the 1986 elections and the stage was set for a new era of personal destruction in the pursuit of a supposedly higher good.
Bob Bork became a sacrificial lamb for, among others, Ted Kennedy, who libeled him with the preposterous allegation that Bork wanted to return America to the days in which women got abortions with coat hangers. Why? For the crime of arguing, honestly and correctly, that Roe v. Wade, which somehow found a right to abortion in the language of a document that never mentioned abortion, was a travesty. …
Almost a quarter century after his “Borking,” the judicial transformation his character assassination was designed to help prevent has happened anyway. In a brilliant article we published a few months ago, called Bork Won, Adam J. White lays out the enduring legacy of this remarkable and complicated man, who was left on the far shore but got to watch as the people who followed him crossed the river and took his journey forward.
We would very much like to believe that Bork won. But we find it hard. Remembering that the Obama appointees Judges Elena Kagan and Sonia Sotomayor are sitting on the bench of the Supreme Court; and considering that “conservative” Chief Justice John Roberts rescued Obamacare from the oblivion it deserves; and observing that judges increasingly apply sharia in preference to US Constitutional law; and noticing the probability that Obama, re-elected for another four disastrous years, may have the opportunity to appoint another progressive judge or two, we fear that justice itself is more than likely to be “Borked”.
Coomenting on the Sotomayor nomination, Ben Shapiro writes (in part) in Townhall:
On Tuesday, President Barack Obama nominated Second U.S. Circuit Court of Appeals Judge Sonia Sotomayor, 54, a graduate of Yale Law School and a liberal rewriter of the Constitution, to replace Justice David Souter on the U.S. Supreme Court. The pick is a bad one primarily because Sotomayor is the living embodiment of legal realist theory: She makes decisions based on her own political and social experiences.
As Sotomayor puts it, judges should consider their “experiences as women and people of color” while hearing cases, and those experiences should “affect our decisions.” And Latinas are especially qualified to sit on the Supreme Court, according to Sotomayor: “I would hope that a wise Latina woman with the richness of her experience would more often than not reach a better conclusion than a white male who hasn’t lived that life.”
In short, Sotomayor believes that law, like beauty, is entirely in the eye of the beholder. It is therefore of vital importance which beholders are sitting on the Supreme Court. Judicial philosophy is irrelevant, in this view; the only true judicial philosophy is personal philosophy.
The idea of impartial justice – law courts, juries, advocates for the defense, rules of evidence – is quintessentially masculine. Being as nearly empty of emotion as any societal human activity can be, it is not what most women and the political left feel comfortable with.
Justice can never be perfect, but the pursuit of it is an indispensible necessity if civil societies are to exist at all.
There are signs that the United States under the rule of the left may be giving up the pursuit of objective justice and replacing it with a competition for pity, so that criminals and civil litigants will make their cases not by presenting facts and argument but by striving to wring tears from their fellow citizens. Those who make the most abject spectacle of themselves and present a list of the most pathetic miseries will gain the ruling in their favor – provided that the fellow citizen authorized to pronounce the verdict is someone of the accused or plaintiff’s own sex, race, and economic class, otherwise how could the ‘judge’ be expected to understand the quality of the emotional self-expression underlying the crime or dispute?
What will be the result of this change? Rather than trust the feelings of some sentimental lady on a bench, we will be compelled to take justice in our hands, keep ourselves perpetually armed, and make no contract that we cannot ourselves enforce by credible threats of vengeance.
So let ‘s do the worst we can for ourselves, invite affliction, or let’s go and buy guns while we still may.