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Judge Robert Bork, Conservative Icon and Catholic Convert, R.I.P. (4659)

A quarter century after his Supreme Court nomination was derailed by an unprecedented personal attack mounted by opponents of his judicial philosophy, the prescient legal theorist died Dec. 19 in Arlington, Va.

12/20/2012 Comments (14)
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Judge Robert H. Bork

– Public Domain

WASHINGTON — Early yesterday morning, Judge Robert H. Bork died in an Arlington, Va., hospital of complications from heart disease.

A renowned legal scholar and former professor at Yale, Bork served as U.S. solicitor general and U.S. attorney general, as well as sat as a judge on the Court of Appeals for the D.C. Circuit from 1982-1988, where he was succeeded by Clarence Thomas.

Today, he is probably best remembered for the contentious Senate confirmation battle that followed his nomination to the Supreme Court by President Ronald Reagan.

The acrimony of that confirmation, which included Sen. Edward Kennedy’s now-infamous description of “Robert Bork’s America” and featured a denunciation by Bill Clinton (a former student of Bork’s from his years of teaching at Yale), has cast a long shadow over subsequent Supreme Court nominations.

It also gave the English language a new verb, “to bork,” defined by the 2002 Oxford English Dictionary as “to defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way.”

Bork was no stranger to political controversy. He had already been criticized for his involvement in the Watergate-era “Saturday Night Massacre,” when he fulfilled President Nixon’s order to fire Watergate special prosecutor Archibald Cox, who had displeased Nixon by requesting tapes of conversations the president had held in the Oval Office.

But despite this experience of partisan politics, Bork was unprepared for the viciousness of his landmark nomination battle. As he put it in his 1990 book The Tempting of America, “It had simply never occurred to me that anybody could misrepresent my career and views as Kennedy did.”

Bork resigned his seat on the D.C. Circuit in the aftermath of the hearings, leading some commentators to suggest that he had been embittered by the process. However, Opus Dei Father C. John McCloskey III, who was instrumental in Bork’s conversion to Catholicism in 2003, offered a description of his friend that counters this dark portrait.

“[Bork] could play the curmudgeon. He was hirsute; he had the beard — he was also a big smoker. He could have been a jazz musician in the 1950s. He had an ironic sense of humor. … [But] he was fun to be with. One of the things he was famous for was the Bork martini,” said Father McCloskey, referring to a special recipe the judge concocted to serve to guests at his house. “I wouldn’t call him a slap-your-back kind of fellow, but he was fun to be around.”

 

Mary Ellen Bork’s Influence

Bork was greatly influenced in his conversion by his second wife, Mary Ellen Pohl, a former Catholic nun. Former National Review editor Kate O’Beirne, a friend of the Borks who also acted as Judge Bork’s godmother, described Mrs. Bork as a key influence on his decision to enter the Church.

“Through his towering intellect, Bob Bork reasoned his way to the faith with his beloved wife, Mary Ellen, as his indispensable guide and example,” O’Beirne told the Register.

Bork himself repeated the same tale from a different angle, when he paraphrased a congratulatory note sent by the late Father Richard John Neuhaus, the editor of First Things, shortly after his reception into the Church: “[N]ow all of the saints [can] get some rest from Mary Ellen’s importuning.”

Mrs. Bork gave a similar story when she spoke of her husband’s conversion during an interview earlier this year. “When we told people about this, a friend of ours said, ‘Well, now Mary Ellen can give St. Monica and St. Jude a rest’ — St. Monica being the mother of St. Augustine, who prayed for his conversion for many years, and St. Jude being the patron saint of impossible cases.”

Over the past 10 years, Mary Ellen Bork continued to take care of her husband physically, as she had done spiritually, supervising his care as he battled a number of serious health problems.

 

Two Men for All Seasons

Four years before Bork’s conversion, there were already indications of his deepening attraction to Catholicism, when he penned an article on St. Thomas More for First Things.

Bork’s admiration for More was apparent, even as he critiqued the accuracy of Robert Bolt’s portrayal of the saint in the play A Man for All Seasons. While admitting that Bolt’s play “got More remarkably right,” Bork disputed the playwright’s interpretation of the English saint’s motive for refusing to take the Oath of Supremacy.

“Bolt writes that More seemed to him ‘a man with an adamantine sense of his own self.’ … Yet it seems wrong, or at least potentially misleading, to attribute More’s behavior to ‘selfhood,’” Bork suggested.

“It is a symptom of our disorder that we glorify, practically deify, the individual conscience. It was not always so. It must have been well into this century before ‘civil disobedience’ and ‘heresy’ became terms of praise. To the contrary, More’s behavior may be seen as submission to external authority, a conscious and difficult denial of self.”

From that statement, Bork moves into a reflection on law in modern America as compared with law in More’s Tudor-era England, reaching at length a remarkable conclusion on the dangers inherent in the failure to submit to religious authority.

“Liberty of conscience, insofar as it means the freedom of the individual to construct his own norms, moves from religion to morality, from morality to law, and hence to religious, moral and legal anarchy,” he concluded.

Bork’s affinity for More was based not only on an admiration for his thought, but also on certain coincidences of life.

Father McCloskey observes that “Robert Bork was one of the greatest jurists in United States history and one of the greatest public servants and a judge also; and More was all those things as well. … Bob, in his own way, was a man for all seasons.”

Austin Ruse, writing for The Catholic Thing in 2008, suggested another connection between the two men.

“At the time of his Senate hearings, according to Bork himself, he was an atheist. And here is what I wonder. Would Bork have journeyed to Rome had he served on the Supreme Court? While Mary Ellen’s example and influence would have remained present either way, other influences certainly would have been brought to bear, namely, power and our tendency to attach ourselves to it. The rich young man went away because he was too attached to his things. … Is it possible that Robert Bork lost the whole world — the court and all that meant — but gained his soul?”

Bork himself, speaking in an interview with Register senior writer Tim Drake, put a humble and typically witty spin on his conversion: “There is an advantage in waiting until you’re 76 to be baptized, because you’re forgiven all of your prior sins. Plus, at that age you’re not likely to commit any really interesting or serious sins.”

 

Legal Legacy

With Bork’s death, constitutional experts will revive their speculative meditation on what his legacy on the Supreme Court might have been. Certainly the jurisprudence of the last 25 years would have had a different flavor with Bork on the bench instead of Reagan’s substitute nominee, Anthony Kennedy.

Mark Steyn has pointed to Bork’s “terrific comic timing” as one reason why he “would have made a great Supreme Court justice. … If you were on a panel with him, he was lethally economical: He gave the shortest answers and got the biggest laughs.”

But the legacy Bork did leave behind — discounting a single verb as rustic in sound as his beard was in shape — is remarkable enough. In the words of former Senate Judiciary Committee Chairman Orrin Hatch, “There is no one who has articulated the conservative viewpoint on the Constitution more or better than Judge Bork.”

Judge Bork’s legacy also includes three bestselling books, including Slouching Towards Gomorrah (1996) and Coercing Virtue (2003). They offer his penetrating insights into the social problems facing modern America and how they are manifested in legal and political dysfunction.

As Father McCloskey put it: Bork “basically saw where we are today, 10 to 15 years ago — he saw the relativism; he saw the government playing too big a part in society.

“He was a prophet.”

Sophia Mason is a graduate student at The Catholic University of America.

She blogs at The Girl Who Was Saturday and lives in Arlington, Virginia.

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