Misrule of Law

Judge Robert Bork, who died in 2012, was a hero of mine. He was a legal giant–achieving great distinction as a practicing lawyer, legal scholar, law professor, Solicitor General, and judge on the D.C. Circuit. I proudly own autographed copies of his classics The Tempting of America (1990) and Slouching Towards Gomorrah (1996), as well as unsigned copies of his other books. The Senate’s rejection of his nomination to the U.S. Supreme Court by President Ronald Reagan in 1987 was an outrage and a disgrace. Justice Antonin Scalia was rightly canonized upon his death in 2016, yet I have always felt it unfair that Judge Bork’s legacy is overlooked. He was denied his proper role in our jurisprudence and constitutional history by the Senate’s ignominious denial of his confirmation to the Court. Instead, we got 30 years of Justice Anthony Kennedy, who just retired.

I am not a fan of Justice Kennedy. My views are summarized here and here.

I wrote about the Bork defeat in 1988, for Reason magazine, “Beyond Bork” (here).

Last year, before the 2017-18 term began, I wrote a profile of Judge Bork for City Journal,  entitled “The Original Originalist,” the publication of which was unfortunately delayed until the Summer 2018 issue. By the time it came out, the term was over, Justice Kennedy had retired, and President Trump had nominated Judge Brett Kavanaugh in his place. The City Journal piece is finally live on the website (here). The Wall Street Journal ran a highly-modified and greatly-abridged adaptation on September 1, entitled “Robert Bork’s Proud Legacy and the Senate’s Shameful One” (here), ahead of the commencement of Judge Kavanaugh’s confirmation hearing, scheduled to begin on September 4.

I hope Judge Kavanaugh is swiftly and easily confirmed.

The Kavanaugh hearing got off to a rocky start, due to the Democrats’ obstruction and grandstanding. But I was heartened by Sen. Chuck Grassley quoting me in his opening statement. Also here.