How Robert Bork Changed American Politics

This month marks the 25th anniversary of President Ronald Reagan’s failed attempt to confirm former federal appellate judge Robert Bork to the U.S. Supreme Court, an event that largely set the template for every bitterly contested judicial confirmation battle that has followed. In a superb new essay in Commentary, Adam J. White tells the story of the Bork nomination and reflects on how it ultimately reshaped American politics. As White writes:

The changed course of future Supreme Court nominations was the Bork nomination’s most obvious legacy, but that was not its only legacy. Indeed, the Bork nomination’s most significant impact may be not the manner in which Supreme Court justices are selected, but rather the content of constitutional law itself. For while Bork himself was pilloried for embracing an originalist approach to constitutional law, his nomination’s failure laid the basis for originalism’s eventual success. The Bork hearings galvanized conservatives and challenged them to refine originalism to achieve greater political effectiveness....

Even more fundamentally, the Bork hearings forced originalists to reconsider, or at least further develop, first principles. Where Bork had defended originalism primarily as an inquiry into the Founding Fathers’ “intentions”—a seemingly subjective inquiry, irrevocably tied to the Framers’ politics and prejudices—conservatives eventually shifted their focus away from “intentions” and toward the more objective “original public meaning” of the constitutional text.

The title of White’s essay is “Bork Won,” and as the excerpted paragraphs above indicate, he makes a very compelling case to support this counterintuitive claim. As a founding father of originalism, Bork may indeed take a certain amount of satisfaction in the theory’s growing influence, which is visible both on the Supreme Court and in popular political movements such as the Tea Party. In fact, as White notes in the piece, nowadays even liberal legal scholars want to get in on the originalism game, with recent books such as Yale law professor Jack Balkin’s Living Originalism attempting to reconcile progressive political outcomes with the Constitution’s text.

Bork also played an important role in the rise and development of a distinctly libertarian legal movement, though his contributions in that realm occurred in more of a negative capacity. As libertarian legal scholars began honing their own theories about the meaning of the Constitution over the past several decades, they frequently pointed to Bork’s work as an example of the sort of thing they were arguing against.

For instance, in 1986 the libertarian Cato Institute published Stephen Macedo’s influential book The New Right vs. The Constitution, which took direct aim at Bork’s heavy emphasis on judicial restraint and majority rule, and his correspondingly narrow view of individual rights. “When conservatives like Bork treat rights as islands surrounded by a sea of government powers,” Macedo wrote, “they precisely reverse the view of the Founders as enshrined in the Constitution, wherein government powers are limited and specified and rendered as islands surrounded by a sea of individual rights.”

Similarly, in his groundbreaking 2004 book Restoring the Lost Constitution, libertarian Georgetown law professor Randy Barnett extensively critiqued Bork’s cramped interpretation of the Ninth Amendment, which explicitly guarantees the protection of unenumerated rights, despite Bork’s famous dismissal of the amendment as being analogous to an “ink blot."

In more recent years, this legal debate between libertarians and Borkian conservatives has played out over issues ranging from gun rights to economic liberty, while also revealing important divisions among the Supreme Court's right-leaning justices.

So whether you're a fan or foe of Robert Bork, there's no question he has had a tremendous influence on American politics.

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  • John||

    The real legacy of the Bork hearing is that it ended any honest debate on Supreme Court nominees. Whatever you think of Bork's judicial philosophy, he was honest about it and tried to explain it to the Senate. And they destroyed him for it. Thanks to the Bork hearing we now have nonentities like Suiter, Roberts and Kagen on the court. People who were appointed specifically because they were adept at lying and hiding their real thinking.

  • ||

    Yeah, I was going to make a similar point.

    Damon wrote: an event that largely set the template for every bitterly contested judicial confirmation battle that has followed, but from what I've seen with SC nominees they go through the bells and whistles of the whole thing but has anyone actually been turned down since Bork? I don't think so, probably because they figure they don't want to be up against the same wall when the presidency switches hands.

  • ||

  • ||

    Though, to be fair, the nom was withdrawn before she appeared before the Judiciary Committee. That one was simply a preemptive strike against what possibly could have been a real stinker of a confirmation process.

  • The Derider||

    I don't think you actually read the wiki article.

    "The nomination almost immediately drew criticism, virtually all of it from within the President's own party: David Frum castigated an "unforced error",[1] and Robert Bork denounced it a "disaster" and "a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years.""

    Harriet Myers is just like Robert Bork, who thought she was unqualified to be a Supreme Court judge?

  • ||

    Derp.

  • Jordan||

    I don't think you actually read the comment Groovus was responding to.

  • ||

    Oh joe, you pathetic cunt, are you emboldened now that your boy Obama wasn't abjectly terrible in another debate? You're literally the lowest form of life on this fucking planet.

  • The Derider||

    Stop crying Joe, the hurting will be over soon.

  • ||

    You grow stupider by the comment, joe. Soon you'll be...oh wait, you already are the stupidest--and shortest--man alive.

  • ||

    This is stupid even by your standards, joe. Do you ever get embarrassed by how stupid and craven you are, or are you incapable of shame?

  • ||

    Everyone is entitled to make mistakes...

    Of Course Joe is incapable of admitting to ever making one....so never mind keep bashing the mendacious a-hole.

  • Pro Libertate||

    It seems to me that confirmations were more of the rubber stamp variety for judges prior to Bork, though I know there were some exceptions. However, I agree that real positions are being hidden more than they used to be.

    Remember Douglas Ginsburg? The one who had to withdraw because he smoked pot? That happened in the late 80s (Reagan nominee, I think). Oddly, the whole issue of past drug use didn't matter once Clinton was a serious candidate just a few years later.

  • John||

    Doug Ginsburg was the replacement for Bork. And the reason why he didn't sail through was John Sununu got his panties in a wad over the Ginsburg. Thanks to Sununu we got Kennedy rather than Ginsburg who would have been the most Libertarian justice probably ever. I hate that fucker to this day for it. Sununu is also the fat fuck who convinced Bush I that Suiter was really a conservative.

  • Juice||

    I think there's a one Ginsburg limit on the Supreme Court though.

  • Zeb||

    "the whole issue of past drug use didn't matter once Clinton was a serious candidate just a few years later"

    It was enough of an issue that he made the ridiculous "didn't inhale" statement. Nowadays few candidates really need to fear admitting smoking pot in college.

  • Pro Libertate||

    Yeah, but no one followed up on that or believed him. It was the first step to where we are now.

  • rac3rx||

    Yeah, with President Choom Gang, or whatever.

  • Doctor Whom||

    We need as justices those people who can most convincingly pretend never to have thought about abortion.

  • Whiterun Guard||

    Well as long as they can separate their personal feelings about it from their personal feelings about what they feel the Constitution implies about it.

  • Eduard van Haalen||

    One might at least expect that Republicans would retaliate for Bork by rejecting some extreme liberal nominees. But they overwhelmingly approved Ruth Ginsburg. They didn't even try to "Bork" her, though they could certainly have had a fun time doing so, with a former ACLU litigation specialist.

  • John||

    They have never had control of the Senate when a Dem nominated a justice. Both of Clintons came up when they were in the minority.

  • Eduard van Haalen||

    OK, they could have voted against her and put their objections on the record. Bear in mind that there are people who vote Republican pretty much only because of the Supreme Court.

  • sarcasmic||

    They didn't even try to "Bork" her

    Not enough beer in the world....

  • John||

    And Ted Kennedy was a Democrat.

  • Whiterun Guard||

    I think he would have passed confirmation if he'd have gone by Bob Bork.

  • SugarFree||

    All I can hear when discussing Bork is the sound effects of Q*bert.

  • Whiterun Guard||

    All I hear is the Swedish Chef.

  • SugarFree||

    Great. Now I'm hearing both at the same time.

  • Whiterun Guard||

    Remember that 'click' in the Q*bert machines? That used to scare the crap out of me.

  • SugarFree||

    Oh, man. The local arcade game refurbishing place has a Baby Pac-Man that I want. Did you ever play it? Half video/half pinball. Probably weighs a ton.

  • John||

    I had a friend in the Army who had a full sized mortal combat game in his living room. Used to go to his house and drink beer and play it for hours. God his wife hated that damn machine. Right in the middle of her living room. I can't believe he kept her from 'accidentally' crushing it some day while she was cleaning. Wonderful women she was.

  • Whiterun Guard||

    Hmm...I vaguely remember that. That's awesome if you do wind up getting it.

    A friend of mine got a sit down Tempest (the flat top one with like a restauarant booth built onto it kind) a couple years ago. I can't believe how amazingly fun and time-eating it still is.

  • John||

    If I had a really good basement I would totally get a few of those old machines. They are wonderfully fun to this day. Get a missile command and maybe a gallaga and one of the table top pac man ones.

  • Pro Libertate||

    We went on vacation in Gatlinburg last Thanksgiving, and the house we stayed in had a Galaga machine in it. The kids and I loved it--I scored over a million, which the kids were insanely impressed by.

  • robc||

    Friends of mine were just in Pigeon forge and the house they rented had a multi-game machine. I think about a dozen old school games all in one machine.

    IIRC, it had Ms Pac Man, Asteroids and others. Those two I remember.

  • robc||

    Ah, yes, Space Invaders too.

    I would want Berzerk.

  • ||

    Friends of mine were just in Pigeon forge and the house they rented had a multi-game machine. I think about a dozen old school games all in one machine.

    I went to a friend's house for the Super Bowl this year and he had a multi-game machine with what had to be 50+ games. Dodgeball, Contra, Missile Command... that machine had a ton of games.

  • Whiterun Guard||

    For me, I'd have a theme:

    Ms. Pac-man
    Galaga '88
    Millipede
    Stargate

  • Lord Humungus||

    I would do:

    Sinistar
    Wizard of Wor
    Golden Axe

    and the classics
    Asteroids
    Space Invaders

  • rho||

    +1 for Sinistar and Wizard of Wor. I'd include Phoenix and Gorf as well.

    Sinistar is best in the sit-down model, where "BEWARE I LIVE" assaults your head at a billion dB.

  • Pro Libertate||

    You can just build a console and stick a PC in it. You could also hook up special control boards. There are emulators that can easily run all of those old games.

  • Pro Libertate||

    I love Tempest. It wasn't that long ago that I played that on my PC.

  • Whiterun Guard||

    Playing it with the dial control and the sound up to annoying arcade levels is even more ridiculous.

  • ||

    I, for one, am holding out for a TRON arcade machine myself. Memories. And many a spent quarter.

  • John||

    TRon was kick ass. Memories.

  • ||

    Yes, yes it was. The tanks are what always got me killed. My favourite was the spiders, followed by the light cycles. The MCP cone was kinda just kinda there, but did get challenging eventually.

  • SugarFree||

    Did you ever play Discs of Tron, the second arcade cabinet?

    http://en.wikipedia.org/wiki/Discs_of_Tron

  • ||

    I did, Saccharin Man, but it didn't have the same magic as TRON proper did. I liked the "mini-game" aspect of the original.

  • LTC(ret) John||

    TRON - ah, yes ...

    "I don't know how you survived, slave!"

  • rac3rx||

    Atari makes a Greatest hits app for iPod/iPad that has all of these original games. Loads of fun.

  • Pro Libertate||

    I have that on my Fire, too.

  • LTC(ret) John||

    "Atari makes a Greatest hits app for iPod/iPad that has all of these original games."

    What?!

    /Runs to get iPod as soon as he leaves work

  • SugarFree||

    I love Tempest. The dial control was was so different, like the twin joystick on Robotron 2024 and Smash TV (my favorite arcade game ever.)

    BIG MONEY! BIG PRIZES! I LOVE IT!

  • Pro Libertate||

    I'd buy that for a dollar! Loved, loved Robotron and Smash TV. And Tempest.

  • Whiterun Guard||

    Yep yep, I loved Smash TV.

    Fighting games really ruined the arcades. Drove out all us INTJ types.

  • LTC(ret) John||

    "Smash TV"

    But the question remains, where is the money?!

  • ||

    All the video game talk; has anyone seen previews for Wreck-It Ralph? I don't usually get to excited or worked up over animated movies, but I kinda want to see this one. They have a Q*bert analog and what even looks like Jane Lynch in a Starcraft world.

  • BakedPenguin||

    What, no love for Centipede?

    Dicks.

  • JW||

    I don't recall Smash TV.

    The Star Trek game was fun, but way too easy to get killed by the Klingons.

  • Rasilio||

    I was thinking the same thing about Joust

  • LTC(ret) John||

    Centipede - my wife's favorite old game. Does that count?

  • Stormy Dragon||

    My favorite classic video games are Spyhunter and Rampage

  • mad libertarian guy||

    Stay the fuck out of Pop's Resale, Sug.

  • John||

    The center fielder for the Orioles is named Adam Jones and eponymous with the notorious "make it rain" football player Adam "Pacman" Jones. The sports radio people here call the Orioles Jones "Adam Q*bert Jones".

  • Stormy Dragon||

    It should also be noted we're just two days from the anniversary of the Saturday Night Massacre, which is the reason Robert Bork shouldn't be trusted with a nomination for dog catcher, much less Supreme Court Justice.

  • ||

    As a founding father of originalism, Bork may indeed take a certain amount of satisfaction in the theory’s growing influence

    Pretty sure originalism would have happened no matter what.

    The original text exists so any drift away from what the text says will always be pushed back.

    This is why people like Ezra Kline say that no one understands what was written over a 100 years ago...cuz what is written in the constitution conflicts with what he wants.

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