I read with sadness and nostalgia the death of the great Robert Bork. http://news.msn.com/obits/supreme-court-nominee-robert-bork-dies The article is already unfair to him as I'm sure the press will be. He was not "Nixon's hatchet man." He stayed, applauded by Archibald Cox, to maintain things at Justice and that required terminating those who no longer had the confidence of the President. A nice description of this at AEI, and a reminder of the vicious slanderer Patrick Leahy attacking him for fees earned to pay for a dying wife's cancer. http://www.aei.org/article/in-memoriam-robert-bork
As a law student I went to the hearings. They were so packed that you could only sit for a half hour then had to leave and stand on line again. I remember the Alabama Democrat Howell Heflin asking him "Judge Bawk tell us about yoah beahd.." Heflin focussed on his youthful Marxism. Biden and Kennedy--one an idiot who barely made it out of law school and the other demonstrably unfit by academic cheating and obstruction of justice to be a member of the bar brought on the inquest.
Kennedy came to Georgetown University Law School and gave a rant about "Judge Bork's America." He took no questions. The law school gave him that platform then let him scurry away. Bork was magnificent but a newly revived Democratic majority along with weak kneed Republicans sunk him.
He went on to write three big books for the general reader, one of which is good and the other of which is depressing but a Jeremiad, and the third I have not read. I saw him at conferences and had a scotch with him once. But perhaps memory fails as one of his most famous writings is on the martini. http://www.nationalreview.com/corner/176729/judge-bork-martinis/kathryn-jean-lopez He married a devout Catholic and converted. From atheist to Catholic. His sense of humor and rumbling, cigarette infused laugh never left him as far as I know (I have not seen him in 6 years or so).
But now to the "what ifs." If Bork had made it on the bench instead of Kennedy a host of rulings would have changed. We would not have Lawrence v. Texas and the threat of judicially imposed definitions of marriage. We would likely not have Heller either which made clear the Court would protect gun ownership as an individual right as the other bill of rights are enforced. Bork's "original understanding" jurisprudence was also not likely to overturn a ton of democratically created laws. We would likely still be allowed to have the death penalty for rape and for killers under 18 both of which Kennedy struck down because of his devotion to European norms being imported in to our Constitution. His influence on Antitrust law--already monumental would have been staggering.
But the key thing is this. Putting aside his intellectual influence which would likely have been considerable. He would have died at the beginning of Obama's second term! This would give President Obama the chance to replace a "conservative' with another Kagan/Sotomayor. The Democratic Left would in one fell swoop have the Presidency, the Senate and the Court.
I will mourn Robert Bork but nothing so much as his passing brought some small silver lining to a terrible disappointment of my youth.
ah, good times
1 day ago