MCGUIGAN: Remembering Judge Bork, the greatest man I have ever known

Friday, December 21st, 2012

by Patrick B. McGuigan │ Oklahoma Watchdog

U.S. Supreme Court nominee Robert H. Bork testifies before the Senate Judiciary Committee on the first day of his confirmation hearings on Capitol Hill, Sept. 16, 1987. Bork’s message to the committee was that he was neither liberal nor conservative. (AP Photo/ Charles Tasnadi)

OKLAHOMA CITY – Robert Heron Bork, Sr., died Wednesday, Dec. 19. He was the greatest man I have ever known.

We met in the early 1980s, during my decade working on legal research and journalism in Washington, D.C.

I knew him by reputation as the man whose academic works on anti-trust law transformed an entire area of legal analysis, pulling not only intellectuals but also the judiciary toward a more rational application of precedent, and a fresh understanding of the competitive purposes of the underlying law.

After a distinguished career at the University of Chicago School of Law, Bork served six years on the U.S. Court of Appeals for the District of Columbia Circuit. He emerged as the leading conservative jurist in modern history. When he was nominated to replace Lewis Powell on the High Court in 1987, many were convinced he could not lose.

To the contrary, from the first moments of that fight, a handful of young activists and scholars knew that President Ronald Reagan was weakened politically in the wake of the 1986 Senate elections (in which Democrats retook control of the upper chamber). Dan Casey of the American Conservative Union, my co-captain among Bork’s coalition of supporters – knew the organized Left would oppose Bork with all their might.
They did, and after a searing confrontation that featured the first-ever use of television advertising in such a nomination battle, Judge Bork lost 58-42. It was the worst defeat for a Supreme Court nominee in American history.

I wrote “Ninth Justice: The Fight for Bork” as a combination of history and personal insights into the fight.
My wife, Pam, also knew and loved Judge Bork. After I showed her the galley proof of that book, with my dedication to her, she insisted I add to the list “the 42 who voted yes.” So I did. In an appendix, that publication includes a fine analysis of the confrontation by his son, R.H. Bork, Jr., crafted with erudition and skill.

After leaving the Circuit Court, Judge Bork went on to write several books, including “The Tempting of America” – in part a memoir of the confirmation fight. That book, which I consider his best, was primarily a catalogue of the anti-majoritarian tendencies of the modern American judiciary, with resultant damage to the rule of law, respect for the judicial function and steady erosion of liberty.

The doctrine of “originalism” or “original meaning” was influential for decades. I have been among a band of brothers and sisters seeking to persuade fellow conservatives, as well as libertarians and honest liberals, that Bork had the most “Madisonian” view of the U.S. Constitution among any of our contemporaries. This is not a “simplistic” view – it is an attempt to keep legal culture tethered to the nation’s founding.
Bork engaged heartily in the confrontation over the role of courts because he loved his country and he loved the law.

Bork’s first wife  died of cancer, and I never knew her. I was fortunate to be present when he met Mary Ellen Pohl at a Washington reception, and watched affectionately as they quietly interacted that day, later dated and eventually married.

At a dinner with a small group of his friends in the 1980s, before the confirmation fight, Bork shared a rare insight into his religious views, which he often described as “complex.”

He pointed to the Acts of the Apostles, and the moment when St. Paul, appearing in the public square in Athens, pointed to the statue of the unknown God, telling the Greek philosophers that the “unknown God” is the one true God (Acts 17:16-34, New American Bible). Paul “witnessed” bluntly but respectful of his philosophically inclined audience – trying to use common ground and reason to persuade his listeners as to the truth.

Bork spent a lifetime seeking to persuade the legal class that the best way forward for American law was, and is, to remember the limits of government power, to value rigor in legal argumentation, and to cherish the wisdom of the past bequeathed to us by the Founding Fathers and their generation.

Personally, he was a friend like none other. To be clear, he was not necessarily the nicest guy in the room. He could be gruff and overly blunt. Yet, he was loyal and passionate in defense of his friends, including members of the current Supreme Court. He loved his family.

Bork talked and wrote about things that mattered. He had courage, decency and compassion. Blessed by his friendship and example, I will never forget him.

Note: In addition to writing “Ninth Justice” with Dawn M. Weyrich, (Free Congress/University Press of America), McGuigan edited “The Judges War: The Senate, Legal Culture, Political Ideology and Judicial Confirmation” in 1987. He is the author or editor of 10 books.

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