For the Love of Bork

Jeffrey Rosen, author of the most famous article in the “Sotomayor doesn’t have a rep for smarts” genre, pays tribute to Robert Bork in The New Republic. “Tribute” may not be a perfect word, but Rosen argues that a fundamentally open-minded intellectual was embittered by a politicized confirmation, and that this was a short-sighted, rotten thing to do.

Before the hearings, Robert Bork had been renowned at Yale Law School, where he taught for nearly two decades, not only for his influence on antitrust and constitutional law, but for his ideological open-mindedness: many students of his era fondly remember the seminar he co-taught with his closest friend on the faculty, the liberal constitutional scholar (and TNR legal editor) Alexander Bickel, which featured affectionate bipartisan debates.

What’s strange here: Rosen omits any mention of an article that Bork, then a Yale professor, wrote for a 1963 issue of TNR. The article became famous during the Bork hearings, because the future nominee wrote that the Civil Rights Act was based upon a “principle of unsurpassed ugliness.” The article came about, said Bork to Ted Kennedy, be “because I was arguing with Alex Bickel about this subject.”

I at that time thought that any coercion of the individual by government had to be justified by a principle that did not lead government into all kinds of coercion that should not be there. And I could not see the general philosophical principle here that justified this coercion. I also saw – I also could not see a general philosophical principal that would justify segregation by law. I was leaning on the side of individual freedom.

Kennedy said that Bork only renounced this a decade later, when he was up for solicitor general. “I don’t usually keep issuing my new opinions every time I change my mind,” snarked Bork. You can view the article and the exchange as a reason why Bork’s philosophy would have made him an objectionable justice. Or you can argue that this sort of intellectual freewheeling is a much-missed aspect of judicial bonhomie.