Remembering Judge Bork

America truly lost one of its sages this week with the passing of Judge Robert Bork. The country’s loss was all the greater in that he never got to occupy the seat he so richly deserved on the U. S. Supreme Court.

That he did not was largely the handiwork of political hacks not fit to judge a man of his caliber, or just about anybody else’s, for that matter. One of these politicos now serves as vice-president of the United States.

The Republican operatives who undertook the task of packaging him for the consumption of these worthies were equally shortsighted. The man did not need a makeover.

Your correspondent had the privilege of seeing Judge Bork speaking at a dinner in his honor not long after the debacle of the Senate vote that denied him a place on the highest court in the land. He had just taken a position at the American Enterprise Institute.

“I was on the bench,” Judge Bork told the crowd.”Now I’m at a think tank.”

“Every day I go to the tank and think.” Few, if any, of his detractors could have ad-libbed such a line.

The evening was a memorable one. It would have been unforgettable even if Greg Gutfeld had not set fire to a table at the venerable old Mayflower Hotel, where the banquet was held.

Judge Bork told the audience, “We must, as conservatives, stop the liberals from using the Constitution to implement their political agenda but we must not, as conservatives, use the Constitution to implement our own.” Isn’t that what it’s all about?

Malcolm A. Kline is the Executive Director of Accuracy in Academia. To comment on this article, e-mail mal.kline@academia.org.

I used to be a big fan, and still do love “Slouching Toward Gomorrah.” But looking back it may not be such a bad thing that he didn’t make it to SCOTUS. Don’t get me wrong, Senate Dems were ridiculous in opposition. That whole “outside the mainstream argument is loaded as, obviously, the legal mainstream isn’t any more mainstream than the average academic political science professor is in the mainstream of political thought. The sample is skewed; look at Roberts.

Bork shouldn’t be deified because libs hate him. He did great damage to our side in three major areas:

1. “Original intent” theory, which should have all along been about original meaning. What the law was widely understood to mean when implemented is the thing. When you start divining what they wanted to say but didn’t, you have entered the twilight zone of loose construction. Libs will always, always win that game.

2. “Judicial activism,” which is a real problem but has been misdefined by us. The judiciary shouldn’t act as a legislature, rewriting laws unilaterally as with Obamacare, or making up new laws altogether as with school busing. But in order to get that we don’t have to give leeway to legislatures to do anything but what’s explicitly denied by higher law. That gives a presumption of legality to far, far too much.

So we don’t like Griswold or Roe. So what? All that means is we don’t believe there’s a right to abortion or a right to buy condoms. Does that mean we have to give up Lochner-type decisions for lack of explicit Bill of Rights language undergirding them? Absolutely not. We’ve been backed into a corner with the Footnote Four plus explicit language rationale for unconstitutionality. There are other ways to be unconstitutional. That’s what the 9th amendment is all about.

3. Which brings us to his last major fault. Call it the inkblot lie. Bork would have us shackle libs to explicit Constitutional rights, thinking that’d eliminate non-desiderata like the “right” to abortion. It wouldn’t. In exchange we drop our grabbag of inexplicit rights, which libs are happy to allow. But in order for that to work, we have to ignore explicit language like that of the 9th amendment. This Bork does by pretending he has no idea what it means.

No, it’s worse than that. He pretends no one knows what it means. He compares it to an inkblot. As if had ink been slipped over that particular section of the Constitution the law would be no different. Which makes him a liar. Let me repeat that: Bork lied! He knew damn well what the 9th amendment meant. He just didn’t like it, so he ignored it.

Something similar happened with the 2nd amendment. He found no individual right to keep and bear arms within it. I believe nothing approaching an honest opinion can fail to so find.

In conclusion it’s not that I have to agree with everything anyone says to respect or love them. But it’s a shame Bork was so influential on our side people take his positions to be synonymous with the conservative position. Which they aren’t.

"That he did not [become a Justice] was largely the handiwork of political hacks not fit to judge a man of his caliber. . . ."

What a powerfully accurate summary of the shameful conduct of those "political hacks," many of whom remain in positions of power in the American government!

Judge Bork's view of the Constitution and its protections for individual liberty were consistent with the principles and understanding of those who framed it and of those who participated in ratifying it in the States.

His views were consistent with those of Madison, Hamilton and Jay, as expressed in the 85 essays of THE FEDERALIST.

Further, his views were consistent with the idea expressed by Jefferson:

" "On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed." - Thomas Jefferson, letter to William Johnson, June 12, 1823, The Complete Jefferson, p. 322.

The descendants of the very men who prevented Judge Bork from serving on the Supreme Court will, for generations, see their liberties diminished because of the shameful actions of their ancestors which prevented this staunch defender of liberty from contributing his Creator-endowed gift of fidelity to his nation's Constitution.

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