December 24th, 2012

More Remembrances of Robert Bork

Professor John Harrison clerked for Judge Bork, and among other observations, offers a funny vignette:

Shortly after his appointment to the D.C. Circuit, Judge Bork interviewed me for a clerkship. During the interview he took a phone call, I think from his old law school friend and new judicial colleague Abner Mikva.  Bork said, “They say I’ve been appointed, but I haven’t received my commission yet. What if they won’t give me the commission? Should I sue someone?” Never pass up a good Marbury joke.

Adam Freedman points out that in the grand—and sometimes, not-so-grand—battle of ideas, Bork largely triumphed:

Bork had a lengthy career before and after his brush with the Senate’s brutal confirmation process. Prior to his nomination, he had served for two decades on the Yale Law School faculty and for five years as a federal appellate judge. As an academic, Bork revolutionized antitrust law, which deals with monopolies. He established consumer protection as the only proper justification for anti-monopoly laws. Today, Bork’s interpretation of antitrust law is widely accepted.

More important, Bork is one of a handful of jurists who succeeded in changing the way Americans view our supreme law: the Constitution. In 1987, originalism—the doctrine that the Constitution should be applied as originally understood—was considered a fringe theory. The reigning philosophy in academia and on the bench was that we have a “living Constitution,” in short, that judges can unilaterally change the document’s meaning. In his 1990 book, The Tempting of America, Bork became the first scholar to provide a detailed explanation of originalism for the general public. He also dispelled the myth that originalism seeks to divine the secret intentions of the Constitution’s framers. Rather, it is an attempt to understand how the text would have been understood by “those who ratified our Constitution and its various amendments.” Bork explained that this task was vital “because what the ratifiers understood themselves to be enacting must be taken to be what the public of that time would have understood the words to mean.”

When President Reagan nominated Bork to the Supreme Court, no one questioned his qualifications. Just five years earlier, he had been unanimously confirmed for the D.C. Circuit Court of Appeals, having earned an “exceptionally well qualified” label from the American Bar Association. But in the interim, the Democratic Party had taken control of the Senate. Senator Ted Kennedy orchestrated a smear campaign against Bork so breathtaking in its distortion that even the liberalWashington Post denounced it as a “lynching.” On October 3, 1987, the Senate rejected Bork’s nomination on a 58-42 vote.

Even that setback ultimately served to advance Judge Bork’s constitutional agenda. It galvanized conservatives. In the four years after the confirmation battle, the leading conservative legal organization, the Federalist Society, watched its contributions soar, partly as a result of the “Bork effect.” Today, originalism has moved from the fringes to the mainstream. Many liberal legal scholars concede that judges ought to be guided by the original understanding of the Constitution.

Via Stephen Bainbridge comes this piece by Walter Olson, which reminds us of certain aspects of the confirmation fight over Bork that Bork’s opponents would rather we not remember:

Here’s something you may not know about the 1987 battle that kept Robert Bork off the Supreme Court: Opponents pursued a whispering campaign against him on the grounds that he wasn’t enough of a religious believer.

Back then, many Democrats still held seats in the rural South, and the religion angle gave them an easier way to explain their stance to constituents than, We’ve been asked to oppose him as a party-line matter.

Thus Rep. John Bryant (D-Texas) warned that Bork was “an agnostic who is not a member of any church.”

And Sen. Bennett Johnston (D-La.), while disclaiming any “religious test for judges,” advised “fundamental religious people” back home to “look, in addition to what he has written, at [Bork’s] statements on morals or lack thereof — and I don’t mean to suggest he is immoral — but his lack of occupation with morals and with religion.”

Sen. Howell Heflin (D-Ala.) told constituents he was “disturbed by [Bork’s] refusal to discuss his belief in God — or the lack thereof.” Heflin also alluded darkly to the nominee’s beard and “strange lifestyle” as a Yale law professor.

Jeffrey Toobin appears to be unavailable for comment. More from Olson here, in which he links to—among others—Mickey Kaus, who reminds us that Edward Kennedy’s disgusting claims to the contrary notwithstanding, Robert Bork never opposed the teaching of evolution in schools, and who also recalls an equally appalling statement—Paul Simon’s allegation that Bork might have approved the ruling in Dred Scott. Quite clearly, something about Bork made his opponents absolutely crazy and shameless.

As alluded to by Freedman, Bork’s biggest contribution to the law may have come in the field of antitrust:

Most of the punditry and analysis following Judge Bork’s death has focused on his views on the Constitution, particularly his strong and articulate support for an “originalist” approach to constitutional.  These commentaries have ignored Bork’s tremendous influence in another field, namely, Antitrust Law.  For instance, the main piece in the New York Times on Bork’s passing, while over 2,000 words long, contains only a brief paragraph about his contributions to antitrust law.  CNN’s story on the occasion of Bork’s death does not mention Bork’s contributions to antitrust law at all, aside from a brief quote of Justice Scalia, who lauds Bork’s influence over the field.  Other essays have, like Judge McConnell’s, focused on the implications of Bork’s nomination and rejection for the confirmation process and the integrity of the courts.  (Seehere and here.)  These oversights are unfortunate.   Simply put, Bork helped revolutionize the way that scholars, judges and enforcement officials view the appropriate scope of antitrust regulation and thus the role of the federal government in the nation’s economy.  More precisely, no individual scholar had a greater influence on antitrust law and policy than Robert Bork.

Many know Bork from his classic book, The Antitrust Paradox, published in 1978.  For instance, one remembrance states “The Antitrust Paradox, published in 1978, shifted the entire focus of antitrust policy toward consumer welfare,” without mentioning any previous work.  (See also several similar statements by various participants in this National Review symposium.)   However, Bork’s campaign to revolutionize Antitrust started more than a decade and a half before publication of the Antitrust Paradox.   In particular, while at Yale (ironically?) Bork laid the foundation for the so-called “Chicago Revolution” in antitrust law and policy with a series of articles published between 1961 and 1968.  The Antitrust Paradox drew upon these arguments.     In these works, Bork made two broad and fundamental contributions to antitrust analysis, one normative and one technocratic.

As a normative matter, Bork argued that the antitrust laws should have one goal and one goal alone, namely, the maximization of consumer welfare, which Bork equated with allocative efficiency and thus total economic welfare.  To be sure, other scholars embraced a “total welfare” approach before Bork did.  In particular, and as I explained in this article, Harvard-school economists Edward Mason, Donald Turner, and Carl Kaysen also embraced “total welfare” as an exclusive goal of antitrust regulation.  However, Bork’s work differed from the work of these scholars in two ways.  First, Bork expressly linked “total welfare” and “efficiency” to “consumer welfare,” whereas the Harvard School had not employed the latter term, choosing instead to focus only on “efficiency” as the appropriate goal.  Second, unlike these Harvard scholars, Bork offered a legal defense of total welfare/consumer welfare as an antitrust goal.  In particular, after a thorough review of the legislative history of the Sherman Act, Bork argued that the Congress that passed the Act only “intended” to ban those restraints that reduced total welfare, thus leaving those that enhanced efficient resource allocation unscathed.  SeeRobert H. Bork, Legislative Intent and the Policy of the Sherman Act, 9 J. L. & Econ. 7 (1966).  Bork also argued that, even if Congress’s goal was unclear, courts should nonetheless pursue “consumer welfare” exclusively, because the pursuit of any other goal (e.g., a fair distribution of income) or combinations of goals (e.g. protection of small businesses and efficiency) would require courts to make value choices and trade-offs that were properly left to the legislature.  See  Robert Bork, The Goals of Antitrust Policy, 57 American Econ. Rev. (Papers and Proceedings) 242 (1967).  Some scholars have taken issue with Bork’s equation of “consumer welfare” with total welfare, with one scholar referring to this claim as “something [Bork] made up.” (See also here for an argument that Congress meant to ban all restraints that increased consumer prices in a relevant market, even if the practice increased total welfare.)    Correct or not, Bork’s claim was highly influential.  Indeed, in Reiter v. Sonotone, 442 U.S. 330, 343 (1979) the Supreme Court announced that Congress intended the Sherman Act as a “consumer welfare prescription,” citing the Antitrust Paradox for this proposition.

Michael McConnell—a former judge and now a professor of law—imagines what it might have been like if Bork were confirmed:

At the time of his nomination by President Ronald Reagan, he was the most significant and respected figure in the conservative legal firmament. His work in antitrust transformed the field into a safeguard for competition and consumers. His work in constitutional law sparked a return to employing constitutional text and history as a constraint on judicial interpretation. But Judge Bork had the misfortune to be nominated in a year that control of the Senate passed from Republicans to Democrats. A year earlier, in 1986, Antonin Scalia, Bork’s former colleague on the D.C. Circuit and no less conservative a figure, had been confirmed by a vote of 98-0. Yet when it was Judge Bork’s turn, left-wing advocacy groups mounted a ferocious campaign of opposition, aided and abetted by Democratic senators including Edward Kennedy and Joseph Biden. The opponents caricatured and distorted Judge Bork’s views in one of the most shameless and scurrilous episodes in American judicial history. The defeat of his nomination was of course the result.

These events warrant reflection for two reasons. First, the politically motivated attack on Judge Bork’s views and character marked the end of civility in judicial nominations and established the modern practice of obstruction of well-qualified nominees by both sides. This now extends even to court of appeals and district court nominees. Political acrimony has poisoned the process of judicial selection and confirmation, to the great injury of our independent judiciary and the rule of law. Those who now deplore Republican opposition to President Obama’s nominees should be aware that the roots of this partisanship lie in the “Borking” of Bork.

Second, Judge Bork’s constitutional vision was grounded principally in the need for judicial restraint—the idea that judges should not overturn the acts of democratically elected legislatures without a firm basis in constitutional text and history (a view that he called “interpretivism”). The justice who took the seat Bork did not was Anthony Kennedy, who is commonly dubbed a “moderate” because he votes, in different cases, with both the liberal and the conservative wings of the court. Studies of the court’s voting patterns indicate, however, that Kennedy votes more often than any other justice to overturn acts of legislatures both state and federal, whether for progressive gains like gay rights or limiting capital punishment, or conservative causes like blocking Obamacare or striking down campaign finance regulation. He is thus a very different kind of justice than Bork would have been.

Finally, be sure to check out Richard Epstein’s remembrance, which contains praise alongside critiques of Bork. Of course, it is entirely possible to critique Bork in death, but one must be responsible with one’s criticism. Professor Epstein is to be commended for his sense of responsibility and sobriety, just as Jeffrey Toobin deserves to be condemned for his lack thereof.

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