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Brief Thoughts on a Justice Bork

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By:Scott P. Richert | December 20, 2012

 

I met Judge Robert Bork once, in the summer of 1989, when I was interning at Accuracy in Media. I was working on a feature story for the Washington Inquirer, AIM's weekly newspaper, about the Smithsonian Institution's use of tax dollars to fund the performance of Santeria and Palo Mayombe rituals on the Mall in Washington, D.C. The late Reed Irvine sent me over to the American Enterprise Institute, where Bork was speaking, in the hope that I could get a comment from him for the story.

Bork was more than happy to oblige. His originalist understanding of the First Amendment, he said, did not prohibit federal involvement with religion, including the use of federal funds to advance a religion. Therefore, he saw no problem with the Smithsonian's activities. When I asked whether he really thought it was the original intent of the framers of the First Amendment to fund pagan animal sacrifices, he waved me away and turned back to the crowd of sycophantic young neocons gathered around him—none of whom, suffice it to say, had any reason to be concerned about the use of tax dollars to fund federal activities that undermined Christian culture.

Those who mourn the Senate's failure to confirm President Reagan's nomination of Judge Bork to the U.S. Supreme Court make the undeniable claim that a Justice Bork would have been different from a Justice Kennedy. But the real question is how different, and in what ways? The Justice Kennedy of today is not what he always was, and a Justice Bork might not have been what Judge Bork seemed to be in 1987. Pointing to Bork's writings after he resigned his appellate judgeship in 1988 as evidence that he wouldn't have changed doesn't really work; it is easier to maintain one's ideological purity off the bench than on it. Just ask John Roberts, or, for that matter, Anthony Kennedy.

In many cases, there is no reason to believe that Bork would have voted differently from Kennedy. (For instance, in light of my conversation with the good judge, the 1993 case of Church of Lukumi Babalu Aye v. City of Hialeah—one of Sam Francis's favorite examples of judicial tyranny—springs to mind.) On other issues, it's not clear that a Justice Bork would have had the opportunity to make the mark that both his supporters and opponents assume he would have made.

Specifically, on the matter of abortion, Justice Kennedy voted correctly in the landmark case of Webster v. Reproductive Health Services (1989), which set the stage for the Court to revisit Roe v. Wade in a case scheduled to come before the Court later that year. Both pro-life and pro-abortion activists were convinced that that case—Turnock v. Ragsdale, out of Chronicles' hometown of Rockford, Illinois—would lead either to significant restrictions on Roe or even to its outright reversal.

Turnock, however, was never argued before the U.S. Supreme Court. The "pro-life" George H.W. Bush administration, panicked by the possibility of Roe being reversed, strong-armed the state of Illinois. Just weeks before the Court was scheduled to hear Turnock, the Republican governor and the Democratic attorney general agreed to drop the case, and to create a statutory class of "lightly regulated" abortion clinics in Illinois, which became the model for many states across the country.

In the 23 years between the scuttling of Turnock and Judge Bork's death on December 19, 2012, only one other case raising an issue that would have justified revisiting Roe v. Wade has come before the Court—1992's Planned Parenthood v. Casey—and the justification for revisiting Roe in that case (and thus the chance to convince a majority to vote in favor of overturning Roe) was considerably more limited than in Turnock. Even if Judge Bork, in his Supreme Court nomination hearings, had not "so abased himself that he would present no threat to the ruling establishment" (as Tom Fleming wrote in the November 1987 issue of Chronicles), the George H.W. Bush administration would have deprived a Justice Bork of the best opportunity he would have had to try to forge a majority on the Court to overturn Roe v. Wade.

The real lesson of the Bork nomination hearings had little to do with the U.S. Supreme Court, and even less to do with how the Court might have ruled between then and now had Bork been confirmed, and everything to do with the left's ratcheting up of the Culture War, and the right's unwillingness to fight for what its leaders claim to believe. In that sense, the Bush administration's betrayal of the pro-life movement on Turnock v. Ragsdale is the true fruit of those hearings—and a Justice Bork, sadly, could have done nothing to prevent it.

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