Judge Bork And The Law Of Unintended Consequences

Judge Robert Bork died today at the age of 85.  I don’t need to tell readers of this blog who he was and how he became so well-known to the general public.   The sole point of this post is to ask whether the political left would have attacked him the way it did if it had been able to foresee how its excoriation of the judge following his nomination to the U.S. Supreme Court would politicize the judicial nomination process beyond imagination.

I was but a lowly 1L in law school when President Reagan nominated Judge Bork to replace the moderate, swing-vote justice Lewis Powell following his retirement.  I was only beginning to learn about originalism, judicial conservatism v. judicial activism, etc.  I knew nothing about Judge Bork before his nomination.  I was distinctly unhappy to learn that, in his capacity as President Nixon’s Solicitor General, Bork fired Watergate Special Prosecutor Archibald Cox after Nixon’s Attorney General, Elliot Richardson, and his Deputy Attorney General, William Ruckelshaus, both resigned rather than comply with the president’s directive to fire Cox.  For me, that was reason enough to oppose Bork’s nomination to the nation’s highest court.  The attacks on Bork were unrelenting and a divided Senate ultimately rejected his nomination.

Bork was hardly the first unsuccessful nominee to the Supreme Court.  But his defeat–or rather the way in which he was attacked and defeated–led to a hyper-partisan approach to judicial nominations.  They became–and remain–a blood sport.  The way he was attacked even acquired its own name: “Borking.”  Would things be different if Robert Bork’s nomination had not been defeated, or if he had been defeated but his detractors had used different methods?  The answer, according to a number of thoughtful people, is a resounding “yes.”  Check out these links:

“We’re Still Paying the Price For The Borking of Robert Bork” (By Jeffrey Rosen)

The Sad Legacy of Robert Bork (By Andrew Cohen)

If Bork Hadn’t Been Borked (By Andrew Sullivan)

What if Robert Bork Had Joined The Supreme Court (Michael McConnell)

Yale Law School professor Jack Balkin also has an interesting post on his blog.

For more on the legacy of the Bork hearings, check out the links collected on Howard Bashman’s blog, How Appealing.