by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Twenty-five years after liberals launched a large-scale attack on U.S. Supreme Court nominee Robert Bork — generating the new verb “Borked” in the process — attorney Adam J, White writes in the latest Commentary that the confirmation process that ended in Senate rejection of Bork’s nomination has led to some positive developments.
The changed course of future Supreme Court nominations was the Bork nomination’s most obvious legacy, but that was not its only legacy. Indeed, the Bork nomination’s most significant impact may be not the manner in which Supreme Court justices are selected, but rather the content of constitutional law itself. For while Bork himself was pilloried for embracing an originalist approach to constitutional law, his nomination’s failure laid the basis for originalism’s eventual success. The Bork hearings galvanized conservatives and challenged them to refine originalism to achieve greater political effectiveness.
Bork himself took the first significant step by writing The Tempting of America, the first substantial book-length defense of originalism. In it he presented originalism as a matter of theory and then, in recounting the confirmation fight, responded to the charges levied against him by senators and liberal activists. For example, Bork attempted to resolve alleged conflicts between the originalist theory and Brown v. Board of Education, which relied upon sociological arguments utterly foreign to originalism. “The purpose that brought the fourteenth amendment into being,” Bork wrote, “was equality before the law, and equality, not separation [i.e., separate-but-equal], was written into the [Constitution’s] text.”
More important, Bork’s defense of originalism would be followed by the comprehensive efforts of scholars such as Michael McConnell (who developed a lengthy defense of “Originalism and the Desegregation Decisions”), Randy Barnett (on the Commerce Clause), John Yoo (on the president’s war powers), and myriad other conservative proponents of originalism.
Even more fundamentally, the Bork hearings forced originalists to reconsider, or at least further develop, first principles. Where Bork had defended originalism primarily as an inquiry into the Founding Fathers’ “intentions”—a seemingly subjective inquiry, irrevocably tied to the Framers’ politics and prejudices—conservatives eventually shifted their focus away from “intentions” and toward the more objective “original public meaning” of the constitutional text.