Robert Bork (1927-2012)

Robert Bork has passed away.

The author of two bestselling political commentaries, The Tempting of America and Slouching Towards Gomorrah, Bork is perhaps best remembered for his ill-fated nomination to the Supreme Court in 1987—and for the wrath it provoked from many on the left.

But the controversial jurist was also a lightning rod for many on the right.

Among other places, Bork’s version of “originalist” constitutional interpretation was the subject of debate in a pair of articles in the fall 1997 issue of The Independent Review“The Tempting of Richard Posner,” by Richard Bostan, and “Bork, Bostan, and the Jurisprudence of Limited Government,” by Andrew R. Rutten.

The following lines from Rutten’s piece indicate how sharp the criticisms of Bork from the classical-liberal right could get:

On closer inspection, Bork’s defense of originalism turns out to be a house of glass built on the sand. Bork has built on the sand by relying on fictive history, a past that happened only in textbooks, not in the real world. And he has built out of glass by adopting, at crucial points, the methods he rejects in others. Taken together, these design flaws should make readers wary of Bostan’s claim that Bork’s is the only fit house for free men.

Many observers cite Bork’s confirmation hearings as the beginning of a new era for judicial nominations, one marred by excessive partisanship and misguided obstructionism. On the other hand, at least in 1987 the discussion, however flawed, focused on key principles of constitutional jurisprudence.

Carl Close is Research Fellow and Senior Editor for The Independent Institute and Assistant Editor of The Independent Review and editor of The Lighthouse, The Independent Institute’s weekly e-mail newsletter.
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