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Did Robert Bork become the creature of his critics?

December 19, 2012|By Michael McGough
  • Robert Bork, nominated by President Reagan to the Supreme Court, is sworn in at his confirmation hearing before the Senate Judiciary Committee on Sept. 15, 1987.
Robert Bork, nominated by President Reagan to the Supreme Court, is sworn… ( John Duricka / Associated…)

I expect that the death of Robert Bork will produce a lot of commentary about how different the law would be today if the Senate had confirmed his nomination to the Supreme Court in 1987.

That’s an obvious reaction. If Bork -- and not Justice Anthony Kennedy, who was confirmed for the position that eluded Bork -- had been on the court in 1992, Roe v. Wade might have been overruled instead of affirmed in its “essential holding.” On the other hand, Bork in Kennedy’s place probably wouldn’t have prevented the court from striking down laws criminalizing gay sex in 2003, because Justice Sandra Day O’Connor joined in that judgment (though on legal grounds different from Kennedy’s majority opinion).

At any rate, look for liberal commentators to point to the Kennedy-for-Bork substitution as a vindication of the hardball tactics of Bork's opponents.  It's a fair point.

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Some of the attacks on Bork were perfectly fair (such as the late Arlen Specter’s critique of Bork’s cramped views about free speech). But others were over the top, notably Sen. Edward Kennedy’s  assertion that "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution.”

The unfairness of that and other attacks added the term “Borked” to the political lexicon. To “Bork” someone, according to one online definition, is to “obstruct (someone, esp. a candidate for public office) through systematic defamation or vilification.”

It's possible that the sometimes-unfair attacks on Bork didn’t become a self-fulfilling prophecy. In his later life Bork, a law professor attracted to abstractions and later a mostly mainstream judge on the U.S. Court of Appeals for the District of Columbia Circuit, mutated into a social and religious conservative, writing a screed against liberalism titled “Slouching Toward Gomorrah” and eventually converting to Roman Catholicism. (The Wall Street Journal’s obituary quotes Bork as saying: “There is an advantage in waiting until you're 76 to be baptized, because you're forgiven all of your prior sins.”)

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At the risk of engaging in armchair psychology, I wonder if the “Borking” of Bork by liberals didn’t send him into the arms of the cultural and religious conservatives for whom he hadn’t felt much affinity earlier in his life. 

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