The writer, of Lincoln, is a senior U.S. district judge.
Judge Robert Bork’s life, which ended Dec. 19, is worth remembering. Nominated in 1987 by President Ronald Reagan to serve on the U.S. Supreme Court, Judge Bork was rejected by the Senate at the bombastic urging of Ted Kennedy, Arlen Specter and others of that ilk.
Thus, the active verb “Borked” was born.
No one doubted Bork’s credentials. After a stint in the United States Marine Corps during the Second World War, Bork graduated from the University of Chicago Law School and then began a long and distinguished legal career.
He was a prolific writer and distinguished professor of law at Yale, he served as solicitor general of the United States (the government’s chief lawyer before the Supreme Court), and he performed with distinction as a judge on the United States Court of Appeals for the D.C. Circuit, where he authored opinions of uncommon lucidity.
A substantial majority of the American Bar Association’s Standing Committee on the Federal Judiciary found Bork to be exceptionally well qualified to serve on the Supreme Court. Jim Hewitt, a highly regarded Nebraska lawyer, served as a member of that committee.
The Senate rejected Bork for what he believed. Oversimplified, Bork thought that justices of the Supreme Court should defer to the political branches of government or the electorate when confronted with a legal question that was not clearly answered by the history and text of a statute or the Constitution.
That idea was not radical then, and it is not radical now. While Bork’s views when applied to concrete disputes were certainly debatable, they were perfectly reasonable and well within accepted constitutional and legal norms.
The treatment and rejection of Bork by the Senate had far-reaching consequences. It began the nightmare that has become the norm for judicial confirmation hearings that we labor under today.
Indeed, by 1992, during preparation for my own confirmation hearing, I was told that the mere mention of Judge Bork by a nominee (even to the lowly position of district judge) was considered suicidal. Intellectual honesty and theoretical rigor had become unwelcome in federal judicial confirmation hearings. Kabuki was and is the order of the day.
Unfortunately, we have all been Borked.