The passing of Judge Robert Bork is a sad day for conservatives and all of America. The country will forever suffer the lost opportunity to have had his intellect and principled guidance on our highest court. Democrats rewrote the rule book to deny him his rightful place on the Supreme Court.
The Senate’s refusal to confirm President Reagan’s nomination of Bork to the high court caused Reagan to settle for a less principled choice, Anthony Kennedy, a moderate who would become the court’s “swing vote” for over twenty years.
But now, Bork’s passing has its own ironic revenge. Had he been on the court, his death would have created a vacancy from the conservative wing during the presidency of a liberal Democrat with a liberal Democratic majority in the U.S. Senate. It would have given President Obama the ability to turn the court’s majority over to the liberal wing, something statists and other liberals have craved ever since President Nixon changed the court’s course by naming Warren Burger to replace Earl Warren as chief justice. It would have marked a Democrat President’s first opportunity to replace a conservative justice with a liberal since 1967, when Lyndon Johnson named Thurgood Marshall to succeed Tom Clark. Conservatives would retake that seat in 1990, when Marshall was succeeded by Clarence Thomas.
But that liberal opportunity is not to be, at least not just now, and it isn’t to be because liberal Democrats refused to do the right thing in 1987. If they had followed time-honored precedent, the impeccable legal credentials of Bork would have required them to confirm, in spite of the senators’ philosophic and political differences with the judge, just as senators of both parties had done repeatedly in the past. But no, liberal Democrats, led by a young prospective presidential contender named Joe Biden, played politics and changed the unwritten rules to deny Bork the position he deserved.
What the Democrats and the nation got instead was Kennedy, who besides being more moderate was also nine years younger than Bork. Kennedy remains very much alive and still on the court. And thanks to another wrongful Democratic act, Kennedy isn’t even a swing vote any more. That second act was President Obama’s attempt to bully the court into submission to his agenda. He singled the court out for criticism in his 2010 State of the Union speech, which hardened the resolve of the court’s conservative wing. It especially angered Kennedy, who has been a more reliable conservative vote ever since.
What goes around comes around. Yes, America misses the well-reasoned conservative decisions that a Justice Bork would have rendered for some 25 years. He is gone now, and he is missed. But the guy we had to “settle” for lives on, stronger than ever. Obama and Biden inadvertently did their parts, some 22 years apart, to preserve the conservative edge on the Supreme Court today.