December 26, 2012
Robert H. Bork, 1927-2012
Robert Bork died on Dec. 19, 2012 after a distinguish career serving on the bench as well as by way of his many published contributions to legal philosophy. While many commentators writing about his legacy today characterize his jurisprudence as "Originalism," back in the day it was best to view his work from the perspective of Legal Positivism.
Of course, Bork is most well-known for his nomination to the SCOTUS and the fallout from failing to receive the Senate's confirmation. In A Conservative Whose Supreme Court Bid Set the Senate Afire, NYT's Ethan Bronner writes
The success of the anti-Bork campaign is widely seen to have shifted the tone and emphasis of Supreme Court nominations since then, giving them an often strong political cast and making it hard, many argue, for a nominee with firmly held views ever to be confirmed.
Some present-day pundits have opined that they were surprised by how ill-prepared Bork appeared to be during the Senate Judiciary Committee hearings. But they are applying the post-Bork standard for the current status quo to Senate confirmations.
In Recalling Cardozo Law Review’s “Bork Book” (Concurring Opinions), Lawrence Cunningham recounts the story of working on a Cardozo Law Review's issue that was published just ahead of the confirmation proceedings. Titled "The Bork Nomination", the editors collected and published a dozen essays and four reports assessing Judge Bork’s jurisprudence in a 530-page special issue.
The special issue, released in early October ahead of the hearings, sold briskly at many book shops around Washington and New York that fall. It was clear during the hearings that many Senators had read our product. In the years after, it was even clearer that Judge Bork had, as he cited to our “Bork book” often.
This is one of those very, very rare instances where a law review issue actually contributed to something beyond the closed world known as the legal academy. [JH]