I don't usually speak ill of the dead but there are exceptions to every rule and Robert Bork ticks off many of the boxes on my speak ill of the dead checklist. He died today at the age of 85.
The first time I ever heard of the wingnutty legal scholar was when he did Tricky Dick's dirty work and fired Watergate Special Prosecutor, Archibald Cox. That was the originalist's original sin in my book.
I was in law school when Reagan nominated Bork to the Supreme Court. Our faculty was largely liberal but there were some pretty good debates in the hallways about Bork's merits and demerits. It was a time when it was possible to have semi-polite discussions with conservatives. One of my best friends in law school was, and still is, a raging right-winger, non-wingnut division, and we had some heated arguments about Bork but extinguished them with beer. He once asked me why "my ilk" was so opposed to Bork and I forget what I said but Paul Campos summed it up pretty darn well at Salon today:
Bork had become accidentally like a martyr, and he cashed in, quite literally, on his supposed victim status, writing a couple of best-selling books decrying the moral degeneracy of contemporary America, and living large on what has been referred to indelicately as wingnut welfare.
This narrative was always a bunch of nonsense, and although de mortuis nil nisi bonum is a maxim of our profession, the memory of the deceased will not be spared here.
Bork’s nomination was defeated because over the course of his career he supported a number of legal positions that became, over time, extremely unpopular with the American public as a whole. For example, he defended the idea that states should be free to enforce Jim Crow laws, and opposed the Civil Rights Act of 1964 on the grounds that using federal law to dismantle the apartheid legal code of the post-Reconstruction South was both unconstitutional and morally wrong.
Unfortunately for him, by 1987 the idea that it was OK to use state violence to remove black people from segregated lunch counters wasn’t the kind of idea that was still acceptable in polite company.
Similarly, Bork’s view that a state ought to be free to criminalize the purchase of contraception by married couples was by that point in American history considered, to use a legal term of art, kind of wacky.
I recall being thrilled when Bork's nomination went down in flames. Ted Kennedy, quite appropriately, got much of the credit with his kick-ass attack on the nominee:
As Chairman of the Judiciary Committee, Joe Biden also helped kill the Bork nomination with dogged research that resulted in devastating questions. Every time some winger calls the Veep stupid, I bring up his role in Borking Bork. It looked for a time as if Joey the Shark would ride this episode to the White House in 1988 but it was not meant to be. I'm still pretty sure that either Biden or Gephardt could have beaten Poppy Bush that year and thereby prevented W's reign of idiotic error and terror, but we'll never know.
Anyway, I'd like to thank Joey and Teddy for keeping Bork off the Supreme Court. Since Professor Campos slipped a Warren Zevon reference into his post, I'll let WZ have the last word: