Thursday, December 20, 2012

Robert Bork and Liberal Paranoia

The other day I mentioned to a liberal enthusiast for public transportation that, in my view, personal transportation is guaranteed in the Constitution.  Of course, I admitted, it's probably not right there in the text.  But I'm sure that I could find it in a "penumbra."

It was penumbras in the Constitution that empowered the US Supreme Court to find a right to privacy and thus a right to abortion, back in the day of Roe v. Wade.  The idea of penumbras comes from the dominant liberal approach to the Constitution, developed by the Progressives at the turn of the 20th century, that modern conditions required a "living constitution" that could adapt to the new world.

Conservatives have come to regard the "living constitution" doctrine in less flattering terms.  Conservatives regard it as giving liberals a free hand to interpret the Constitution any way they want.  So it stands to reason that some conservative would come up with an opposing doctrine, that the constitution means what the writers originally meant, and that if you want to change the Constitution you need to do it the hard way, by formal Constitutional Amendment.

The recently deceased Robert Bork was a principal architect of this "originalism."

Bork was a law professor at Yale for a couple of decades and then President Reagan appointed him, in 1981, to the US Court of Appeals.  In 1987, right after the Democrats had retaken the US Senate, Reagan nominated him to the US Supreme Court.  Democrats, led by Judiciary Committee Chairman Joe Biden and liberal lion Ted Kennedy, saw their chance and they took it.  They successfully calumniated this mainstream conservative judge as a conservative extremist and defeated his nomination.  Thus the tactic of personal calumny became neologized as the verb: to Bork.

This week The New Republic has run a piece regretting the tactics of 1987 but condoning the result: keeping a very conservative judge off the Supreme Court.
It’s a good thing that the man who Bork became after his defeat wasn't confirmed to the Supreme Court: If he, instead of Anthony Kennedy, had been the swing vote between 1987 and 2012, America would indeed have been a more illiberal place.
Right on liberals.  Still, there is room for regret.
But it’s bad for the country that Bork was Borked in the way he was. American courts, judges, and constitutional law have been paying the price for the past twenty-five years, and the future looks even more bleak.
You will not be surprised to learn that the commenters at TNR were not so circumspect.  They parroted the sentiments taught to them over 30 years ago by Sen. Edward Kennedy and others, that Bork was a dangerous extremist that should never have been nominated to the Supreme Court.

But here's a more telling commentary on Robert Bork and conservative jurisprudence, from John O'Sullivan:
At one point in the 1960s, Bob Bork and the other conservative law professor in Yale Law School approached its director to argue for the appointment of a third conservative to the faculty. They were told that although their candidate had excellent credentials, the selection committee had decided with agonized regret not to appoint him. They were afraid that the 60-strong faculty might be “swamped” with conservatives.
So who, really, are the pathologically paranoid ones in America?

If liberal professors are going to get their knickers in a twist over the prospect of 3 conservative professors in a faculty of 60, you can begin to see the problems that America is going to have, when it is time to show its liberal ruling class the door some day between now and eternity.


  1. I prefer the verb, Kopechne.
    Same technique.
    Same result

  2. I only wish that conservatives had the guts to "bork" Sotomayor and Kagan, two women who are as mistrustful of the First Amendment as President O.