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In our opinion: Defining Robert Bork: Pop culture tends to judge a person by fleeting encounters with the national spotlight

Published: Friday, Dec. 21 2012 12:00 a.m. MST

In this Sept. 16, 1987 file photo, U.S. Supreme Court nominee Robert H. Bork testifies before the Senate Judiciary Committee during his confirmation hearings on Capitol Hill.

Associated Press

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An unfortunate byproduct of the modern media age is that popular culture tends to judge a person by fleeting encounters with the national spotlight. These tend to present a distorted caricature of reality.

Robert Bork had two such encounters — one when he carried out President Richard Nixon's order to fire the special prosecutor in the Watergate case, and the other when the Senate rejected his nomination to the Supreme Court after a vicious campaign by his opponents.

The first encounter was an interesting side note to a historical episode that ended with Nixon's resignation. The latter was unfortunate not only for the precedent it set in the way Supreme Court nominees are confirmed, but because it left many Americans with a false notion about the man.

Bork, who died earlier this week at the age of 85, had an extraordinary and positive influence on antitrust law and on how jurists interpret the Constitution. He was a brilliant man with insightful views on the dangers facing society because of the breakdown of traditional family structures and morals.

Regarding antitrust laws, Bork, as an academic, established the notion that laws against monopolies are justified by the need for consumer protection, not by the need to guard against large businesses. Had this view not become widely accepted, the rise of Internet moguls such as Amazon and Google may not have been allowed to change the economy as they have. Instead, market efficiencies were given greater rein to reduce prices and increase living standards.

As a jurist, he was among a handful who brought the notion of originalism — the thought that the Constitution should be interpreted as it originally was understood — into the mainstream.

The philosophy was described in detail in his book, "The Tempting of America." It now has become, at least in a perfunctory sense, the acceptable way to guide judicial decisions, although interpretations of original intent often differ widely.

But his 1987 Senate confirmation hearings are what the media, and many Americans, remember most about Bork. Liberals in the Senate mounted a smear campaign that included newspaper and television ads. It was a scorched-earth ideological war Bork lacked the resources to counter.

But it succeeded, and a new verb, to "Bork," entered the dictionary, defined as "to attack (a candidate or public figure) systematically, especially in the media."

During a visit to Salt Lake City in 1991, Bork said his nomination ordeal would lead to a time when future nominees would have to be people who had published little and had no opinions. "I foresee that some young people starting out their scholarly careers will become very careful of what they write," he said.

Those words proved true. While his Senate rejection in 1987 didn't define Bork, they marked an unfortunate turning point in Senate confirmation hearings. As a popular blogger of the Supreme Court told NPR this week, today "we have this ridiculous system … where nominees shut up and don't say anything that might signal what they really think."

That is an unfortunate consequence of a very public attempt to define the man. Bork's real contributions, however, far outweigh those crude political attacks.

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