AEI scholars on the death of Judge Robert Bork

Judge Robert H. Bork a longtime legal scholar and member of the AEI community passed away today at the age of 85.  Arthur Brooks, Walter Berns, John Bolton, Steve Hawyard and Michael Greve offered the following thoughts.

Arthur Brooks: Judge Robert Bork, RIP

Judge Robert Bork has passed away at the age of 85. A longtime legal scholar, judge, and friend of AEI, he leaves a long legacy as a scholar, a public servant, and a passionate voice in policy.

At AEI, Judge Bork was a visiting scholar and then a resident scholar for many years. He was also the recipient of the 1984 Francis Boyer award, the predecessor to the Irving Kristol award.

To most people, Bork was likely best known as a critic of the Warren Court and a defender of originalism. But perhaps his most lasting legacy is in the field of anti-trust law, where his legal writings and economic analysis of anti-trust, where the view that he developed — that antitrust law should seek to maximize benefits to consumers — has gone from a niche view to one widely accepted by legal scholars. He wrote his seminal work on the topic, The Antitrust Paradox, while at AEI.

Judge Bork was a brilliant legal scholar and policy thinker, and a great friend to AEI. He will be missed.

Walter Berns: Robert Bork's Distinguished Life

Bob Bork was a distinguished legal scholar, judge, teacher, and dear friend to his associates here at AEI.  He was also a Marine who fought in Korea.  He lost his first wife and mother of his three children, Claire, and his closest friend and Yale Law School colleague, Alexander Bickel, to cancer. He himself, when nominated to the Supreme Court was the victim of vicious lies and other calumnies. During these past thirty years of sickness and health, his second wife Mary Ellen cared for him so lovingly.

John Bolton: In memoriam: Robert H. Bork

Bob Bork was my antitrust professor at Yale Law School in 1972-73, where he was one of a small band of conservative/libertarian students and teachers.  Ralph Winter and Ward Bowman were the only other two like-minded professors, although they did have some fellow travelers among the professoriat who were merely New Deal liberals.

All three were both scholars and public policy writers, and all were associated with AEI over the years in various ways.  

So few were our numbers at Yale Law that when the White House announced Bob’s name for solicitor general, Ralph Winter joked that the first sentence in the Yale Daily News coverage should read:  “Yesterday, President Nixon nominated 20 percent of all the conservatives at Yale Law School to be solicitor general.”  Bob himself could have come up with that line, his sense of humor being wry and self-deprecating.

Bob was central to the development and growth of the law-and-economics movement, and Bob’s book, "The Antitrust Paradox," remains a towering intellectual achievement, dwarfing everything else in the field.  I remember sitting behind students who were stunned that economics could actually inform antitrust case law, as if mere reason should be allowed to get in the way of their ideological objectives.

One of Bob’s most important services to our country is also one of the most misunderstood, during the “Saturday Night Massacre.”  When Nixon gave Attorney General Elliot Richardson the order to fire Watergate Special Prosecutor Archibald Cox, Richardson resigned, as he had committed to do in his Senate confirmation hearings if the White House ever tried to interfere with Cox’s investigation. Deputy AG William Ruckelshaus also resigned, as he had similarly pledged to do.

By virtue of these resignations, Bork, the third-ranking official at the Department of Justice, became acting attorney general. Although he had been confirmed before the Watergate affair had become an issue, and never been asked to make such a pledge, Bork told Richardson and Ruckelshaus that he thought he should also resign.

They urged him not to, because then the entire top leadership of the department might have followed suit, and the country plunged into a constitutional crisis the likes of which we had never seen.  Richardson and Ruckelshaus urged him to fire Cox to preserve the department’s legitimacy.

Said Richardson: “You’ve got the gun now, Bob.  It’s your duty to pull the trigger.”  Bork did fire Cox, and paid for it the rest of his life. Gerald Ford should have nominated him to the Supreme Court, but chose John Paul Stevens instead, because Ford wanted to avoid the controversy sending up Bork’s name would have caused.

But the worst was yet to come.  In the most shameful act in the Senate’s long history of considering presidential nominations, in 1987 Bork was rejected for the Supreme Court seat he deserved and our country would have benefited from.  Many of his opponents in the Senate engaged in straightforward character assassination.

Bork flinched only once, when Sen. Patrick Leahy questioned him on legal fees he had earned during one period when he was teaching at Yale Law School.  Leahy felt that the fees were high, and Bork had to reveal that he was earning this extra income to pay for the medical expenses associated with his first wife’s ultimately unsuccessful battle with cancer.  After a brief recess, Bork returned, and continued to run intellectual rings around his Senate adversaries.  Maybe that was the real problem.

Our country will greatly miss Bob Bork.  He was a friend and inspiration to many at AEI and around the country.  He never regretted the consequences of standing by his philosophical principles.  Why else have them?

Steven Hayward: Robert Bork's revenge?

The distinguished jurist Robert Bork has died at the age of 85.  Roger Kimball recalls him here, noting with understatement that the left’s scorched-earth opposition to his Supreme Court nomination was “obscene.”  I have a long account of it in "The Age of Reagan," but the core of the matter is this: “George Will was not alone in calling Bork ‘the most intellectually distinguished nominee since Felix Frankfurter.’  That was exactly the problem for the left.”

At least no one drowned in "Robert Bork's America"

Bork’s nomination brought out the highest hypocrisy of the left.  Take the current vice president, Wide-Mouth Biden, as an example.  When President Carter nominated the liberal Abner Mikva to an appeals court in 1979, Biden rebuffed conservative complaints about Mikva’s activist liberal philosophy: “I think that the advice and consent responsibility of the Senate does not permit us to deprive the president of the United States from being able to appoint that person or persons who have a particular point of view unless it can be shown that their temperament does not fit the job.”  Ted Kennedy said on the Senate floor: “If strong political views were a disqualifying factor from serving on the federal bench, then all of us here today—and every man and women who has ever served in either house of Congress, or held political office—would be disqualified.”  Kennedy had made a similar argument in 1967 in defense of Thurgood Marshall’s appointment to the Supreme Court.  That all went out the window with Bork, of course.

Bork’s death today might well represent his ultimate revenge on the left: had he been confirmed to the court, his passing today (there’s no special reason to think he would have retired) would have opened up an appointment for President Obama to name a new justice and tip the court to the left.  Instead, the man Reagan put in the seat Bork would have filled, Anthony Kennedy, will carry on, determined, I am reliably told, to serve at least until Obama is gone in part because he was offended by Obama’s demagogic attack on the Citizens United decision that Kennedy wrote.  Another irony is that the chief reason Reagan selected Scalia over Bork for an open seat on the court in 1986 was that he thought he might not get any more high court appointments, and wanted to place a jurist on the court who would serve for a long time.

Some months ago the Daily Beast’s Lloyd Grove caught up with Bork, and suggested that his obituary would dwell on his role in the 1973 “Saturday Night Massacre” of the Watergate scandal.  Bork (whom I knew slightly) responded as I would have expected:

"I’d like to know how you know what my obituary is going to say,” Bork gruffly demands when I suggest the above-mentioned scenario. In any case, he adds, “I have no control over it—so I refuse to worry about it."

The irony, surely lost on liberals, is that the serious criticism of Bork’s jurisprudence would come from the Right, rather than the Left (though it was not disqualifying for the Court, to be sure).  Bork, like Scalia, was a strict textualist, and has little regard for the natural law tradition of the American founding, or its implication, for example, in the Ninth Amendment.  In this Bork was reacting against the abuse of the 9th and 14th Amendments by liberal judges to “discover” positive “rights” in the “emanations and penumbras” of the Constitution.  In other words, Bork was something of a legal positivist—but of the Right rather than the Left.  Had he been confirmed, a Justice Bork would likely have followed Chief Justice Rehnquist in upholding most exercises of state power so long as they were reasonably spelled out in statutes.

Ironically the person who was on to this was Judiciary Committee chairman Joe Biden, who cleverly undermined Bork from the right.  In questioning from Biden, Bork compared the 9th Amendment to an “inkblot” — as a clause without useable meaning.  “Nobody has ever to my knowledge understood precisely what the 9th Amendment did mean and what it was intended to do,” Bork told Sen. Biden.  It was hard to escape the conclusion that much of Bork’s dislike of the 9th Amendment stemmed from its use by Justice Arthur Goldberg as the basis for discovering a “right to privacy” in Griswold.  But can it really be that a passage of the Constitution is practically meaningless, that there are rights which judges are powerless to protect?  Were the Founders bad draftsmen?  Was Bork truly unaware of Alexander Hamilton’s argument in Federalist 84 against including a bill of rights in the Constitution, namely, that a positive enumeration would have the effect of misinstructing the people as to the nature and extent of their rights, as well as laying a pretext, by omission, for the government to grab more power than the Constitution intended?  Hamilton’s argument was rejected, though his logic has certainly been vindicated with the passage of time.

None of this, as I say, is disqualifying for a Supreme Court seat, and in fact it is nearly the identical outlook as Justice Scalia’s.  Still, I doubt any of the obituaries that will appear today will make note of this most interesting aspect of Bork’s story.  The legacy of the vicious and obscene campaign against Bork is not just a new verb in the dictionary, but a permanently warped judicial confirmation process that now reaches lower judicial appointments.  If it were possible to confer “contempt of court” rulings against the left, the case of Bork would easily meet any standard of probable cause.  Instead we should remember Bork by holding the left in contempt of the public, which is their default position.

Michael Greve: We Mourn

[T]he death of a great, great man: Judge Robert Bork. So many fond memories: arriving at AEI in 2000 and being consigned to the tenth floor “smokers row” next to the judge, with Walter Berns and Hillel Fradkin: amid the smoke, you couldn’t see your own face. But there’s the judge, scribbling thoughts on yellow legal pads. As my beloved wife said then: you don’t have a job. You’ve just  gone to Heaven. Yup. Bob Bork made it so.

After a moot court when we really needed  a drink (“Easy, judge. They are students. They’re supposed to be stupid.”) he orders a Martini and the waitress asks, “olives“? He looks at her sternly and barks ,”If I want a salad, I’ll order one.”  My kind of man.

My heart goes out to Mary Ellen, and Robert, and Ellen. Your loss is ours: we’ll all miss him, terribly. Mundus eum non cognovit.

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