As John just noted, author Robert Bork, a former-Yale law professor, who also served as Solicitor General of the United States and a as a judge on the DC Circuit Court of Appeals, died today at the age of 84. He had been in ill-health for some time. Bork flirted with libertarianism before becoming perhaps the leading advocate of judicial conservatism. Among his lasting achievements was the support he gave to some Yale law students seeking to found an organization called the Federalist Society. The Federalist Society has this tribute to him on its Facebook page.
Bork was indirectly instrumental in my transition from contracts to constitutional law. At a time when I had three projects on the Ninth Amendment in press — an article, anthology, and law review symposium — he famously gave the following description of the Ninth Amendment during his ill-fated 1987 confirmation hearing to the Supreme Court.
I do not think you can use the Ninth Amendment unless you know something of what it means. For example, if you had an amendment that says ‘Congress shall make no’ and then there is an ink blot and you cannot read the rest of it and that is the only copy you have, I do not think the court can make up what might be under the ink blot if you cannot read it.
This statement created a big market for my Ninth Amendment publications when they appeared during the next year. Years later, I recall being introduced by him on a panel he was moderating. After reading aloud the title of my anthology: The Rights Retained by the People: The History and Meaning of the Ninth Amendment, he good-naturedly responded, “That sounds like a book I should read.”
Although I thought his Supreme Court confirmation hearing, chaired by then-Senate Judiciary Committee Chairman Joe Biden, was largely substantive and fair, the smear campaign waged against him outside the hearing room by activist groups — triggered by Senator Edward Kennedy’s floor speech describing “Robert Bork’s America” delivered minutes after Bork’s nomination by President Reagan — kicked off the now decades-long Disdain Campaign by the Left against conservative and libertarian judges and justices that I describe in my recent contribution to the Harvard Law Review Forum.
Robert Bork. R.I.P.