Wednesday, December 19, 2012

A Judicial Hero Dies And What Ifs Multiply.

I read with sadness and nostalgia the death of the great Robert Bork.  The article is already unfair to him as I'm sure the press will be.   He was not "Nixon's hatchet man."  He stayed, applauded by Archibald Cox, to maintain things at Justice and that required terminating those who no longer had the confidence of the President.  A nice description of this at AEI, and a reminder of the vicious slanderer Patrick Leahy attacking him for fees earned to pay for a dying wife's cancer.

As a law student I went to the hearings.  They were so packed that you could only sit for a half hour then had to leave and stand on line again.  I remember the Alabama Democrat Howell Heflin asking him "Judge Bawk tell us about yoah beahd.."  Heflin focussed on his youthful Marxism.  Biden and Kennedy--one an idiot who barely made it out of law school and the other demonstrably unfit by academic cheating and obstruction of justice to be a member of the bar brought on the inquest.

Kennedy came to Georgetown University Law School and gave a rant about "Judge Bork's America."  He took no questions.  The law school gave him that platform then let him scurry away.  Bork was magnificent but a newly revived Democratic majority along with weak kneed Republicans sunk him. 

He went on to write three big books for the general reader, one of which is good and the other of which is depressing but a Jeremiad, and the third I have not read.  I saw him at conferences and had a scotch with him once.  But perhaps memory fails as one of his most famous writings is on the martini.  He married a devout Catholic and converted.  From atheist to Catholic.  His sense of humor and rumbling, cigarette infused laugh never left him as far as I know (I have not seen him in 6 years or so).

But now to the "what ifs."  If Bork had made it on the bench instead of Kennedy a host of rulings would have changed.  We would not have Lawrence v. Texas and the threat of judicially imposed definitions of marriage.  We would likely not have Heller either which made clear the Court would protect gun ownership as an individual right as the other bill of rights are enforced.  Bork's "original understanding" jurisprudence was also not likely to overturn a ton of democratically created laws.  We would likely still be allowed to have the death penalty for rape and for killers under 18 both of which Kennedy struck down because of his devotion to European norms being imported in to our Constitution.  His influence on Antitrust law--already monumental would have been staggering.

But the key thing is this.  Putting aside his intellectual influence which would likely have been considerable.  He would have died at the beginning of Obama's second term!  This would give President Obama the chance to replace a "conservative' with another Kagan/Sotomayor.   The Democratic Left would in one fell swoop have the Presidency, the Senate and the Court.

I will mourn Robert Bork but nothing so much as his passing brought some small silver lining to a terrible disappointment of my youth. 


Dave S. said...

I am curious that you omit any mention of Roe v. Wade and its likely fate under a Borked Court in the what-ifs.

Staying with the what-ifs for a moment, surely the unrelenting persecution and hounding of the noble Bork through the decades took years off his life, with the re-election of Obama providing the last blow. A seat on the Court and he would have outlived us both.

Finally, I have become fairly adept at deconstructing your collections of words and punctuation over the years, but I have absolutely no clue what is going on in your last paragraph.

jjv said...

I expect Roe would have gone but it is a harder call as Kennedy is not a big Roe guy. The last sentence is poetic and elgiac. Its too deep and sensitive for your coarse sensibility.(basically if he's going to pass inthe Obama administration better a younger Kennedy--a long view I could not take then).

JCC said...

JJV, where do you think Bork would have ruled on the National Security issues (Patriot Act, detentions, etc) that the court has faced in recent years? Would he have stayed true to "original intent" and rebuked the Bush Administration, or would he have rolled over for the national security state?

jjv said...

He would not have struck any of them down. He did not believe the Constitution prevented most national security actions. The premise of the question is that the Constituion of its own force prevents those statutes. Not sure Bork would. He also would not have voted to strike down Obamacare-same reason.

He joined the Marines in 1944 but missed combat. He rejoined for the Korean war and served as an officer there. Given the Federal Actions deemed constitutional in the undeclared war against France in the 1790's; the Civil War; WW I and WW II I can not think of a national security measure that would pass Congress he would find uconstitutional except maybe quartering of troops in private homes.

Alex M. said...

Who is this bigot who opposes the ruling in Lawrence v. Texas? That means you want to put gay people in jail for being gay, very American. But the good news, the author of this absurd post is just another of history's laughingstocks, like the Bork.

jjv said...

I am unaware that even such as Ted Kennedy ever thought Judge Bork was a laughing stock. The view that we ought not make up rights that are not in the Constitution is not bigoted. Its called the rule of law. I don't think adultery laws are unconstitutional either, they certainly never have been. If you want a Constitutional Amendment do what the suffragettes and the 18 year olds did. Warping the law for your policy preferences is not the mark of someone confident in the rightness of his position.

LAM said...

Who mourns for the passing of bad garbage? Good riddance.

smrty.mrty said...

What a great rule you support -- a president can fire the attorney hired to investigate the president. Nonsense, John.