What might have been: Rest in peace, Robert Bork

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Published by: Dan Calabrese on Wednesday December 19th, 2012

By DAN CALABRESE - The second-worst thing Ted Kennedy ever did.

Robert Bork died today at the age of 85. He would have been, and should have been, one of America's great Supreme Court justices. That did not happen because Senate Democrats decided in 1987 to turn one of America's great legal thinkers into some sort of Ku Klux Klan grand wizard - not out of any sense of truth, but out of sheer, shameless partisanship.

Ted Kennedy, in the second most dispicable act of his life, led the charge:

I don't think I even want to say what I'm thinking about Ted Kennedy at this moment. I'm pretty sure I would regret it.

A surprisingly thoughtful memory comes from Yahoo's Jeff Greenfield, who was actually a student of Bork's at Yale in the 1960s, before he came to prominence as Nixon's solicitor general and, of course, as Reagan's first of three nominees for the Supreme Court seat that ultimately went to Anthony Kennedy.

Without question Bork was out of the mainstream of the Yale Law School in the mid-1960s, when I was a student there. He was possibly the only member of the faculty to support Barry Goldwater for president. But that made him exactly the right person to teach, and to challenge, the assumptions of an overwhelmingly liberal group of students. I still remember the last question he posed to his first year constitutional law class: "Write a dissenting opinion in Brown v. Board of Education,” the Court's 1954 opinion that outlawed racial segregation in public schools.

Was this evidence of Bork's Neanderthal views on civil rights? I thought (and still think) otherwise. He was asking students to wrestle with legal concepts on which the opinion itself--which was unanimous--cast no light. He was asking us to go beyond our own convictions, and to think imaginatively. And yes, I'm sure there was an element of puckishness as well. 

That same spirit was on display in a seminar Bork conducted, along with another legendary Yale law professor, Alexander Bickel. We spent weeks arguing--or, rather, listening to Bork and Bickel argue--about a single hypothetical case. A group of passengers flee a sinking ship for a lifeboat on which there is one passenger too many. A very wealthy passenger offers a deal to an impoverished crew member: Give up your seat to me and I will ensure your family financial security for generations. The question: Should American courts allow that contract to be enforced?

In the years after his Supreme Court rejection, Bork became a dyspeptic, partisan figure. On this day, I choose to remember him as a teacher who succeeded in the single most important job: He taught us how to think.

Who knows how history might have been different if Bork had made it to the Court, but I suppose the one thing we can say is that Justice Kennedy is alive and well, so Barack Obama is not getting ready to appoint the fifth liberal Justice today. I guess that's something.

Rest in peace, sir.