Robert Bork’s lasting legacy

One more ironic legacy, in addition to Robert Bork's public influence on original intent for strict construction, was from the evil brought by Teddy Kennedy. Kennedy, in his underhanded, unscrupulous smear of Bork, luckily for the nation, accidentally saved us from another anti-American Supreme Court nomination. And this time, had Bork died while serving on the bench, a conservative justice would be replaced with another radical. m/r

The Original Originalist by Adam Freedman - City Journal
ADAM FREEDMAN 20 December 2012

With the passing of Judge Robert Bork at 85, America has lost one of its most influential legal scholars. Though media obituaries tend to focus on Bork’s unsuccessful nomination to the Supreme Court in 1987, Bork’s legacy is one, not of failure, but of enormous success.

Bork had a lengthy career before and after his brush with the Senate’s brutal confirmation process. Prior to his nomination, he had served for two decades on the Yale Law School faculty and for five years as a federal appellate judge. As an academic, Bork revolutionized antitrust law, which deals with monopolies. He established consumer protection as the only proper justification for anti-monopoly laws. Today, Bork’s interpretation of antitrust law is widely accepted.

More important, Bork is one of a handful of jurists who succeeded in changing the way Americans view our supreme law: the Constitution. In 1987, originalism—the doctrine that the Constitution should be applied as originally understood—was considered a fringe theory. The reigning philosophy in academia and on the bench was that we have a “living Constitution,” in short, that judges can unilaterally change the document’s meaning. In his 1990 book, The Tempting of America, Bork became the first scholar to provide a detailed explanation of originalism for the general public. He also dispelled the myth that originalism seeks to divine the secret intentions of the Constitution’s framers. Rather, it is an attempt to understand how the text would have been understood by “those who ratified our Constitution and its various amendments.” Bork explained that this task was vital “because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean.”

When President Reagan nominated Bork to the Supreme Court, no one questioned his qualifications. Just five years earlier, he had been unanimously confirmed for the D.C. Circuit Court of Appeals, having earned an “exceptionally well qualified” label from the American Bar Association. But in the interim, the Democratic Party had taken control of the Senate. Senator Ted Kennedy orchestrated a smear campaign against Bork so breathtaking in its distortion that even the liberalWashington Post denounced it as a “lynching.” On October 3, 1987, the Senate rejected Bork’s nomination on a 58-42 vote. 

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