Paul Greenberg
Recommend this article

There wasn't a single assertion in the senator's rhetorical broadside that was true, and the cumulative effect would have done justice to a Joe McCarthy or Robert Welsh, or some of the campaign commercials directed at Mitt Romney (remember him?) during this last presidential election.

There were legitimate reasons to oppose the nomination of the Hon. Robert H. Bork to the Supreme Court of the United States, like his assumption that, contrary to Mr. Justice Holmes, the life of the law has been logic, not experience. It was a natural enough error for someone of his intellect to fall into, assuming that the law is only an intellectual discipline -- rather than one shaped by precedent, custom, politics and practical necessity. Not to mention other pressures to which history is heir.

Scholar and logician that Robert Bork was, he wound up making an idolatrous doctrine of Original Intent, insisting that the intent of the Founders is all when it comes to constitutional interpretation, which gave his law a brittle and vulnerable character. For a constitution that cannot change cannot grow. And all living things must grow or die. Judge Bork never recognized that the Constitution lives, too, and that his suffocating literalism would not save it so much as mummify it. ("A state without the means of some change is without the means of its conservation." --Edmund Burke.)

But it was the illegitimate criticisms of Robert Bork's legal philosophy -- the complete misrepresentation of what he believed and ruled in case after case -- that his most ardent critics pushed beyond any bounds of civility. In the end, they would disgrace themselves rather than the judge once the verdict of history was in. Those of his critics who were honest would look back on that campaign of distortion and vituperation, and, in the light of time, regret it.

To quote Jeffrey Rosen, an aide to Joe Biden when the senator from Delaware chaired the Senate Judiciary Committee that so maligned Robert Bork: "Bork's record was distorted beyond recognition. ... The borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into war zones."

. .

Robert Bork himself would go on to a second career as a philosopher-at-law and public intellectual of note. And as a verb -- one that would survive both him and his critics. And that still, in its concise way, says more about the nature of the debate over his qualifications for the Supreme Court than all the detailed studies of that controversy could hope to do.

. .

On his death the other day at 84, Robert Heron Bork had long ago risen above all the smears directed at him. And become a verb.

Recommend this article

Paul Greenberg

Pulitzer Prize-winning Paul Greenberg, one of the most respected and honored commentators in America, is the editorial page editor of the Arkansas Democrat-Gazette.