I am shocked, shocked, to think that someone would use originalism in bad faith to support preconceived ideologies!

What is unusual about Bork is not that he does this, but that he is bad enough at it to be caught at it.

Epstein errs by assuming that the same constraints that held Bork in check while he sat on the D.C. Circuit would have continued had be been confirmed. Judge Bork operated within constraints set by the Supreme Court's rulings; if he did not, he risked reversal. A Justice Bork would not have operated under that constraint; amending the constitution to reverse a Supreme Court decision, even one that by all accounts is patently wrong, is difficult business.

Note that the observation is politically neutral; it has nothing to do with where an inferior court judge fits on any ideological spectrum. Rather, it is simply an inherent feature of the distinction between the two jobs.

I agree. In his rather sloppy "Slouching to Gomorrah" book, Bork first says that it is a straw-man argument to accuse him of favoring government censorship and then goes on to state that there must be come way the government can get Madonna songs out of circulation.

Granted, Madonna can be irritating, but censorship on the basis of personal taste is a strange argument indeed for someone who purports to be an originalist.

And of course Randy Barnett has nicely eviscerated Bork's own evisceration of the Ninth Amendment.

Unfortunately, by becoming so prominent, he has allowed others to portray him as the standard bearer of originalism, whereas the standard is borne more consistently by many of those on our People page.

Interesting. IIRC, Bork became the standard bearer because his nomination was most of America's introduction to originalism and judicial conservatives generally. I was a Reaganaut in HS at the time and the prospect that the government could regulate the sex lives of married people was so alien and tyrannical that no amount of history or legal theory could get me to support Bork. The more I learned, the more I came to believe Bernstein's conclusion, that this was a very intelligent man who was plainly reverse-engineering his political preferences and a research paper written some years later only confirmed my impressions.

I understand that many on the right conflated these reasonable legal qualms with the superfluous nonsense like his video rental records and came to believe that he was the victim of the century. The net effect of all this has to cast doubt on the intellectual honesty of most judicial conservatives. So, while some on the right see the Bork nomination as a missed opportunity and share his bitterness, I would argue that was a disaster for judicial conservatives to have a pompous and condescending fraud hide behind his IQ as it has cast a penumbra of hypocrisy onto an entire generation of jurists.

It's a stereotype (one reinforced by Scalia's tenure, frankly) and stereotypes are unfair, yes, but us non-legal commoners aren't going to wade in to the details all that often. Moreover, the evasive non-answers that most nominees have felt compelled to provide in subsequent confirmation hearings has only strengthened the perception that one side in the judicial/culture wars was dishonest in pretending that they were apolitical arbiters of the law. I'll give Thomas credit for choosing to share his feelings about at least one "silly" law he was voting to uphold on legal grounds. Bork's political views showed no sign of any moderation, and when questioned about his ability to set aside his obviously deeply-held beliefs when acting as a judge he acted like the question was an affront to his dignity. Right. His record of the past 20 years has confirmed that this mistrust was well-placed.

Basically what I'm trying to say is that Bork was and has been such an ass that it poisoned the well for many who followed him. And surely there have been many other conservatives who also use principled-sounding arguments to reverse-engineer the outcome they prefer, just as surely many liberals have. The legitimate criticisms of Warren Court liberalism were clouded by the Bork nomination by making them all seem like some big fancy bullshit game, proving that both sides would reverse engineer as much policy as they could. Or at least that's how it came across to me. Many cases are apolitical by nature, but for those that aren't, if both sides are going to look for legal support of their preconceived ideology, then I'd just as soon strip away the pretense of it being apolitical and have empathy be seen as a worthwhile trait in a Justice.

Bork has been a disaster for conservatives. I'm pleased to see that the more intellectually honest folks here at VC don't treat him like a martyr.

Bork's antipathy for Lochner and his authoritarian social conservatism make him, for me at least, an interesting reference point for the views of right-leaning libertarians. I'm curious, for example, who DB would consider a lesser evil on the Supreme Court, Bork or any of the current four left of center Justices.

Apropos of a recent discussion here, having Bork on the court instead of Kennedy would have led to Texas v. Johnson being decided 5-4 the other way, making flag-burning not constitutionally protected speech. Not that Kennedy is much of a consistent libertarian, but he's much better on the First Amendment than Bork, anyway.

Bork, the so-called originalist, is more than willing to repeal the Ninth Amendment by judicial fiat.

Bork's soul seemingly would have been happiest as a high-ranking ayatollah.

I recall that PBS did a special about the decade of the 60s, and asked Bork if anything good came out of it, and he quickly and unequivocally said "Nothing."

Nothing? LIke civil rights for blacks? Women's rights? awareness of consumer and environmental issues? I think he sees it as one long span of time of just hippies, drugs, sex, hedonism, rock music, jeans, sex, rights for criminals, liberalism, sex, and of course, sex. All the wrong kinds of sex, that is.

As a judge on SCOTUS, I'm fully confident he would do everything in his power to reverse the 60s, which would result in the banning of jeans.

It's kind of piling on at this point, but it is also worth noting that Judge Bork also moved away from his previously expressed views on antitrust when he joined the anti-Microsoft side while the DOJ monopolization suit was ongoing. I was at a discussion where someone asked him why a certain practice was anticompetitive and he responded that if it weren't Microsoft wouldn't be doing it. No economic analysis, no distrust of basing decisions on the allegedly bad motives of the monopolist, nothing of the approach he took in his book. Everyone sort of gasped and someone actually called him out on it. He had no response and it was just kind of sad.

During the hearings (I remember nothing about the ads) it suddenly struck me that he was a judge with no judgment. Whatever his method of applying the Constitution or his intellectual capabilities, he'd managed to get an awful lot of things wrong, like the Civil Rights laws (remember "unsurpassed ugliness?"). That it was all under the pretense of rigorous application of the only permissible method of Constitutional interpretation only made it worse.

P.S. I'll say one thing in Bork's semi-defense, though. I honestly never understood why his "intellectual feast" line was considered a bad thing. Don't we want Supreme Court justices to be enthusiastic about engaging in the intellectual challenges of Constitutional law, difficult issues of statutory interpretation, and other tough legal issues? While I thought there were many, many reasons to oppose Bork, I never understood why that was supposed to be one.

Randy R.:

I guess Bork did have a tin ear, because more people reacted to that line the way you did than the way I did (and from what I've read on this blog, I'm on the same side of the issues you list as you are).

I'm not shedding any tears over it, though, because I still say it was obvious he was an ideological extremist from the git-go.

Epstein isn't entirely fair in his criticism of Bork. From Epstein's article:

But Bork’s staunch defense of the democratic process comes to a screeching halt on the question of gay rights, where he wants to ban gay marriage once and for all.

Since when is a Constitutional amendment anti-democratic?

Agree or disagree with gay marriage, Bork's proposal for a Constitutional amendment defining marriage as between one man and one woman isn't inconsistent with Bork's 'defense of the democratic process.' Rather, it's an application of the democratic process.

"I'm not sure about you, but I prefer judges to have a healthy disinterest in the effects of their rulings."

Of course. But they should also be aware of the effect of their rulings. And indeed, usually they are. For instance, they are often concerned about whether they are giving 'bright line' rules in 4th Amendment cases to police officers and the real world impact upon good police work.

I also agree that Bork is a nut case right from the get-go, and that his feast statement was the least of his problems.

Max: "Since when is a Constitutional amendment anti-democratic?"

Does Bork only want to ban gay marriage through a constitutional amendment? He was totally against the courts overturning the sodomy laws well before Lawrence v. Texas did so. I shudder to think about the things that he has said about gays in the past, and he makes Scalia look like a gay pride participant by comparison. I don't think he would oppose any method to outlaw gay rights.

True, but he is nonetheless wants sodomy laws to remain on the books and would oppose any efforts by state legislatures to amend them. That he will live with them if they do is nice to know.

But I still stand that he supports any law that would limit gay rights, and would oppose any effort, even if just in the voting booth, that would grant any rights to gays. That's his right of course, but he is also widely respected by people on the right, and that in turns hurts our ability to obtain said rights.