It is a sad day. Robert Bork died this morning. But that’s not why it’s sad. It’s sad because of the great opportunity we missed.
One incident in Bork’s career explains everything about him. During the Watergate scandal, Richard Nixon wanted Special Prosecutor Archibald Cox fired because, you know, he was doing his job. Attorney General Elliot Richardson refused to do it and resigned. So did his second in command, William Ruckelshaus. But Bork was willing to do it. Why? Because he’s an authoritarian.
But we missed a great opportunity to have him on the Supreme Court. Instead, we got Clarence Thomas who is 20 years younger than Bork and, more to the point, is not dead. There is really no daylight between Bork and Thomas in terms of how they rule on the cases. They both think children ought to be forced to pray in public school. Women shouldn’t have the right to an abortion. People don’t have a right to privacy.
Bork was an “originalist” (along with Thomas and Antonin Scalia, who is probably even closer in thinking). This is the theory that the Constitution is a dead document. It is an interesting doctrine when you consider that its proponents throw it aside in an instant if it won’t get them to the decisions they want. Take, for example, Bush v. Gore. In that case the originalists suddenly found that equal protection was very important: in the case of one George W. Bush, and only for the one time. They should just be honest and admit that they are partisan lackeys and that they are going to reach partisan decisions. Forget all the legal pretending.
The main point here is that Bork would have been no worse than Thomas on the Supreme Court. And had it been Bork on the Supreme Court, there would now be one less evil man serving. Lost opportunities.
Update (19 December 2012 3:38 pm)
Jeffrey Rosen at The New Republic makes the laughable claim that the difficult Senate confirmation hearings turned Bork and Thomas into fierce partisans. This doesn’t explain Scalia, of course. And then, he takes his argument further saying that presidents learned the lesson and decided to nominate more moderate justices that weren’t “Borkable.” Justices like—Wait for it!—Samuel Alito, that bastion of open mindedness and non-partisanship. Rosen has it all backwards.
Update (20 December 2012 10:52 am)
Matt Yglesias tweets the following which is exactly what I’ve been saying:
Strange thing about Bork is that his influential work on interpreting the Sherman Act is totally indefensible on originalist grounds.
— Matt Yglesias (@mattyglesias) December 20, 2012