Wednesday, December 19, 2012

Robert Bork, R.I.P
Tom Smith

I was saddened to read of the death of Judge Robert Bork.  Judge Bork taught a class which many of us early members in the Federalist Society took at Yale Law School back in ancient times. It was one of my first exposures to originalism. It probably hurt my future academic career to be disillusioned of the usual beliefs of the time (this was the era of "non-interpretivism") but he made up for it by helping me get my first job in academia. I and no doubt a lot of other former students owe him a lot. He was what few of my professors at YLS were -- warm, funny, unpretentious and approachable. He was as smart as any of them or smarter but on top of that, not so impressed with himself; a former Marine and a regular guy. He took those qualities with him to the bench, where I saw him occassionally when I clerked for one of his colleagues on the DC Circuit.

Of course his failure to gain confirmation to the Supreme Court was one of the most disgraceful episodes in 20th century American jurisprudence. The wise may argue over how much died in those dreadful weeks, or whether it was merely the discovery that something had died long before.  You would probably have to go back to the McCarthy hearings to find an equal display of shameful impostures and pious lies, if indeed the McCarthy hearings were even as bad. To be "Borked" became a verb and confirmation hearings permanently reduced to an equilibrium of mutually accepted deception, as tedious and fundatmentally dishonest as a bad marriage.

By all accounts, Judge Bork greatly enjoyed his life post-nomination, proving once again the essential jolliness of conservatism. He was famous for his wit and skill at mixing martinis.  What I will remember most is his obvious deep-down goodness, revealed in practice as generosity, especially toward those who were in no position to pay him back. It was something as rare in Washington as an honest opinion.

"The just shall be in everlasting remembrance; he shall not fear the evil hearing."

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I've got his The Tempting of America - a fine read. RIP indeed.

Posted by: dearieme | Dec 20, 2012 7:23:12 AM

I have his 1978 book, The Antitrust Paradox. He was a driving force behind the antitrust revolution (a field that occupied most of my first eight years of practice). People forget how 40 years ago, the antitrust laws were interpreted to require large, successful businesses to share technology, customers, and other assets with competitors. This gave the federal government (and failing businesses) enormous power to redistribute the fruits of success (it also gave my Dad a good living).

The old presumption of “big is bad” is gone, at least as a matter of law, thanks to Bork as much as anyone. Indeed, the FTC recently declined to prosecute Google for abuse of its search engine, a result unthinkable 40 years ago (see, e.g., the IBM and Exxon litigation of that era). A rare example of government power actually losing scope in this country.

Here's his recipe for the martini as a remedy for electoral adversity:

Posted by: Greg | Dec 20, 2012 11:21:25 AM