You can tell a great deal about a political movement from its adopted mythology. Myths give groups a sense of shared identity. They teach the group’s members what their values are, who they stand for, and why they are unlike their rivals.
Which brings us to the myth of Judge Robert Bork.
Bork was turning point https://t.co/AlaZp2sMaw
— Senator John Cornyn (@JohnCornyn) September 25, 2018
The real Robert Bork was an unpleasant reactionary who spent his career embracing whatever legal theory happened to be in vogue among other conservative reactionaries, then discarding that theory when it was no longer convenient.
“Constitutional protection should be accorded only to speech that is explicitly political,” Bork wrote in 1971, and at time when many conservatives hoped to criminalize various forms of sexual expression. “There is no basis,” Bork claimed “for judicial intervention to protect any other form of expression, be it scientific, literary or that variety of expression we call obscene or pornographic.”
As late as 1987, more than a decade after future Justice Ruth Bader Ginsburg convinced the Supreme Court that the Constitution’s Equal Protection Clause casts a skeptical eye on discrimination against women, Bork wrote that this clause “probably should be kept to things like race and ethnicity.”
And then there was his infamous New Republic article attacking the Civil Rights Act of 1964. Written the year before that law’s passage — a law which banned employment discrimination and whites-only lunch counters — Bork argued that “the principle of such legislation is that if I find your behavior ugly by my standards, moral or aesthetic, and if you prove stubborn about adopting my view of the situation, I am justified in having the state coerce you into more righteous paths.” Such a notion, he concluded, “is itself a principle of unsurpassed ugliness.”
The real Robert Bork faced bipartisan opposition. Fifty-eight senators voted against confirming him to the Supreme Court, including six Republicans. The real Robert Bork was an ugly reminder of the nation we used to be, and a cautionary tale of the nation we’re threatening to become. The Senate’s vote to reject him was, to borrow words from President Obama, a moment when our elected leaders to decided to “chose our better history.”
The myth of Robert Bork is something else. The real Robert Bork was an apologist for racism, but the myth of Robert Bork suggests that, in Sen. Ted Cruz’s (R-TX) words, Bork was “a pioneer who helped lead a transformation of American law.”
The real Robert Bork lost a lopsided confirmation vote due to his wholehearted embrace of the politics of backlash. But the mythical Robert Bork was, in Sen. Chuck Grassley’s (R-IA) words, the victim of an “unprecedented smear campaign.”
The real Robert Bork changed judicial philosophies more often than most people change their hairstyle. Yet the mythical Robert Bork was, in Sen. Orrin Hatch’s (R-UT) words, “a true lion of the law who reinvigorated our belief that principles must be more important than politics.”
Today, Bork is remembered for popularizing originalism, the belief that the Constitution must be interpreted solely according to the framers’ intent (or according to the way the Constitution was “originally understood.” Bork, at times, embraced both of these competing theories of originalism.)
But the real Robert Bork was happy to embrace whatever legal theory would justify his transient conservative goals. As Duke law professor Jamie Boyle writes in an absolutely devastating retrospective on Bork’s career, Bork “has been, successively, a believer in libertarianism, process theory, judicial restraint, natural rights, neutral principles, law and economics, and two distinct forms of originalism.”
Indeed, the only consistent theme throughout Bork’s career is his smugness. Bork did not simply reject inconvenient ideas, Boyle writes, he “identifies a state of corruption and decay in some institution or area of law,” proposes a theory that will “allow us to escape our current fallen state and return to a condition of righteousness,” and holds this theory up as the One True Way to interpret legal texts.
Judge Bork did so, moreover, even when it meant contradicting himself. Each of Bork’s theories “was offered as the only possible remedy to the subjectivity and arbitrariness of value judgments in a constitutional democracy, while the other theories he had held, or was about to hold, were rejected out of hand.”
In this sense, Bork was indeed a pioneer. When Justice Antonin Scalia labeled his fellow justices’ arguments “jiggery-pokery” or “pure applesauce,” he spoke with Bork’s particular brand of performative moral certainty. When Neil Gorsuch lectures his more experienced colleagues that they should “just for a second talk about the arcane matter, the Constitution” he speaks with the spirit of Robert Bork. Bork taught the Federalist Society to look down its noses at anyone with a different view. He is the patron saint of judges outfitted with a black robe and a closed mind.
At times, Bork’s utter lack of principles led him towards moderation. He disavowed his opposition to the Civil Rights Act during his 1973 confirmation hearing to be Solicitor General of the United States. And he claimed that there are ”a few other things I have grown out of” at his Supreme Court confirmation hearing, including some of his narrow views about the First Amendment.
But Bork’s decision to associate civil rights with “unsurpassed ugliness” was not the product of a misguided youth. Bork was in his mid-30s, and he was a professor at Yale when he wrote these words. The myth of Robert Bork asks us to look back on the racial indifference of a scholar in his prime, and write it off as an act of “boys will be boys.”
In the end, the Senate that rejected Judge Bork in 1987 faced a very simple question — did the United States want to take the chance that, once Bork was freed of any need to appease others or to moderate his stances, he would revert to his younger self if confirmed to the Supreme Court? It was asked whether a man who spent decades in the public eye could be held accountable for a career spent giving the finger to women and people of color.
That was the real Robert Bork. And his failed confirmation vote could indeed have turned a page on American history: it could have been the moment when America collectively decided that his views should be segregated to our past.
Instead, Senator Cornyn tells us that Bork’s rejection was a different kind of “turning point.” It was the moment when judicial politics escalated. It was the moment when the blockade against Chief Judge Merrick Garland became an acceptable form of retaliation. It was proof that Democrats will inevitably try to smear Republican nominees, so Republicans should ignore allegations that the GOP’s current nominee is an attempted rapist.
You can tell a lot about a political movement by the myths it tells itself. The Republican Party took a defender of Jim Crow and elevated him into a fallen martyr who must be avenged every time a vacancy arises on the Supreme Court. They’ve spent the last 30 years excusing the inexcusable behavior of their sainted hero. Is it any wonder they are also willing to excuse Brett Kavanaugh?