Last October I wrote in these columns a piece marking the twenty-fifth anniversary of those scandalous hearings sparked by his nomination to the Supreme Court. And yet the irony was that Robert Bork emerged an even larger figure, drawing the respect and affection of a public even larger than the audience he had commanded as a professor and judge.
That summer of the hearings on confirmation, I was driving back and forth between Amherst, Massachusetts and our cottage in Bethesda, Maryland, to settle in for a year of academic leave. Back and forth I listened to those hearings and in later years I would remember parts of the hearings that Bork had forgotten.
At only one moment in those hearings did I wish something could transport me to take Bob's place in that seat facing his questioners. That was when Joe Biden asked (and I paraphrase): Judge, can you imagine a case in which a legislature would actually pass a statute barring access to contraception?
And I would have been tempted to say, Yes, Senator: A regulatory body, pursuant to a statute you had voted for, takes the Dalkon Shield off the market, judging it a hazard. A group of women then come forth to say that they found the device economical and safe, and that they should be the sole judges of the risks they are willing to take with their own bodies. And this was well before we would hear serious talk of legislatures making the wearing of contraceptives compulsory for the participants in pornographic films.
Bob Bork and I would tilt over the years on the matter of natural law. He was, to the end, a confirmed "positivist." He professed to find his decisions controlled by the laws "posited," set down in a statute or in the Constitution. He was enduringly dubious about any attempts to engage in moral reasoning outside the text of the Constitution.
To the dubiety of some of his friends he insisted that this reigning "positivism" was not moral "relativism." But then his friends would recall lines of this kind: "Truth," he once said, "is what the majority thinks it is at any given moment precisely because the majority is permitted to govern and to redefine its values constantly." If that wasn't a signature tune of relativism, it would be hard to invent one.
And yet, anyone who knew Bob Bork knew that, in his reactions to everything of moral consequence in the life whirling around him, there was no trace of moral relativism. To adapt a line from Samuel Johnson, Bob was a lawyer by vocation, but a moralist by necessity. And so it could truly be said that, as a judge, his practice was far, far better than his theory.
In that respect, he gave us the most elegant examples of how a jurisprudence of natural law could be done while professing up and down that it could not be done.
As I remarked then in these columns, Bob Bork as a jurist offered a steady example of the "laws of reason," or the canons of logic, brought to bear on cases in law in a disciplined way. In that respect, he gave us the most elegant examples of how a jurisprudence of natural law could be done while professing up and down that it could not be done. And with the same wisdom that ran beyond his theory, those powers of reasoning would later bring him into the Church even while his scoffing at natural law remained undiminished.
In that respect, as I used to tell him, he had thoroughly absorbed the style of the University of Chicago as he and I had come to know it. He would make the strongest case he could for an argument he was pondering, and then, viewing that argument at its best, decide that it wasn't that compelling after all. Readers or listeners looking on would be baffled as to what he was doing; but to those of us from Chicago it made eminent sense.
He went from that university into the Marines during the war in Korea. In the barracks, he would be reading Shakespeare while those around him read comic books, and that was enough for his sergeant to call him "Hey, Shakes." A sergeant also asked him what religion to put down on his dog tag. Bob insisted at the time that he had no religion. The sergeant said, "All right . . . 'Protestant.'"
When he came into the Church, in his seventies, he remarked that this was a terrific deal: He could be absolved of all the earlier sins, while being too old to engage in any sins that were especially interesting. But I remarked to another friend that Bob's death can itself impart new confidence in a life after death: For it is just implausible to think that a soul so vivid, so vibrant still among his friends, could really be extinguished.
And that may be Bob's last gift, even at the beginning of this New Year, the gift of consolation — and hope.
Hadley Arkes. "Bob Bork: The Lingering Presence." The Catholic Thing (January 1, 2013).
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Hadley Arkes is the Ney Professor of American Institutions at Amherst College and a senior fellow at the Ethics and Public Policy Center. He is a leading expert on American political philosophy, public policy, and constitutional law. He has written five books with Princeton University Press: Bureaucracy, the Marshall Plan, and the National Interest, The Philosopher in the City, First Things: An Inquiry Into the First Principles of Morals and Justice, Beyond the Constitution, and The Return of George Sutherland: Restoring a Jurisprudence of Natural Rights. His most recent book, Natural Rights and the Right to Choose, was published by Cambridge University Press in 2002.
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