Brent Hatch: Judge Bork was a champion of rule of law
The law has lost one of its brightest lights, Judge Robert Heron Bork.
Bork, who died Wednesday at the age of 85, was a federal circuit court judge, acting attorney general of the United States, the solicitor general and a law professor at Yale. He was also a proud Marine. Those were the titles, but his real impact on society was his intellect.
During his legal career he transformed antitrust law and constitutional law. Later in life he became a best-selling author with books such as The Tempting of America and Slouching Towards Gomorrah: Modern Liberalism and American Decline that addressed the moral decline of American culture and politicization of the law.
After graduation from law school, I was privileged to serve as one of Bork's law clerks for the 1984-85 term. I still remember vividly deep discussions of the law in his judicial chambers with now Supreme Court Justice Antonin Scalia. Watching those titans of the law discuss the finer points of jurisprudence was like watching the 1927 Yankees with Babe Ruth and Lou Gehrig. I have never met a man who was brighter or a quicker study.
Bork told me of a visit to the Brigham Young University Law School in the school's early years. He and several other prominent legal scholars had been invited by BYU's then President (now Elder) Dallin H. Oaks to a conference at the school. Bork and Oaks had both graduated from the University of Chicago Law School and had worked at the same Chicago law firm.
Bork laughed as he recounted that the other professors were frustrated at being unable to get a cup of coffee or have a smoke while on campus. As a joke, the professors threatened to invite Oaks to an event at their schools and give everyone a key to the bathroom except Oaks. That said, he told me of his deep love for the people of Utah and the standards set by the BYU Law School.
Later, in October of 1991, Bork filled Symphony Hall in Salt Lake City for a lecture on the role of judges and the need to protect our freedoms. In that lecture he expressed his hope that the United States Senate would judge future nominees by competence, integrity and ability and not on their political positions. Regrettably, the Senate often falls short of that ideal.
Although Bork was a judge and law professor, not an entertainer, he received multiple standing ovations for having the courage to give voice to dignity and common sense.
In the 1987 confirmation hearings to consider Bork to replace Justice Lewis Powell as a justice of the Supreme Court, liberal senators waged a political battle that introduced politics into the judicial selection process in a way that still haunts candidates for government service today.
Bork's resume arguably exceeded that of any lawyer who could have been nominated to the Supreme Court. His detractors, unable to assail his qualifications, waged a political campaign that falsely portrayed the man and his positions.
The inexcusable character assassination of Bork by the likes of Sen. Patrick Leahy of Vermont and Sen. Ted Kennedy of Massachusetts gave birth to a new verb to "bork" which the Oxford Dictionary defines as to "obstruct (someone, especially a candidate for public office) through systematic defamation or vilification."
I still remember reporters going through his garbage trying to get dirt on him and only finding out that his movie rentals bills showed nothing racier than classic movies and John Wayne flicks.
Bork's great sin was to be a voice for what is today the near-universally accepted truth that a judge's job is to interpret the law and not to legislate. At that time, and continuing today, most law school professors taught that if the legislature would not pass laws allowing abortion, onerous environmental restrictions and extensive regulation of industry, then judges should do so.
Bork feared such naked usurpation of power by an unelected branch of government. He believed judges should not be activists who pick sides, but should apply the law neutrally. He decried that "Americans increasingly view the courts, and particularly the Supreme Court, as political rather than legal institutions."
Despite being vilified for his position in 1987, today almost every nominee to be a judge, liberal or conservative, has repeated the mantra that a judge's job is to interpret the law, not make laws. It is ironic that this great man who preached against politics in the application of law by judges, was denied a seat on the Supreme Court in a base display of partisan politics.
Judge Bork will be missed by all of us who believe in the rule of law, the proper role of judges, and the neutral, non-political application of the law.
Brent O. Hatch is a Salt Lake attorney with Hatch, James & Dodge. He served as law clerk to Judge Robert H. Bork in 1984-85.
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