An Editorial on Robert Bork and his Legacy

On Wednesday, December 19, 2012 Robert Heron Bork died at age 85.  I did not mourn.

Bork first became infamous in 1973 for his role in the “Saturday night massacre” when as Solicitor General, the number three position in the Justice Department, he carried out, under President Nixon’s orders, the firing of Watergate Special Prosecutor Archibald Cox.  Bork inherited this task when both Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus resigned in protest.  This much is well known.  What sometimes gets left out of the discussion, though, is that due to the manner in which Cox’s position was created and defined, he could not be removed except for cause.  Doing a good job of tracking down evidence relevant to the case he was pursuing does not qualify as cause.  This was a defining moment in Bork’s career, in which he conveniently chose power over principle.

Most recently he was the senior judicial adviser to Mitt Romney’s unsuccessful presidential campaign, but he is best known for being rejected as a Supreme Court justice when nominated for that position in 1987 by Ronald Reagan.  After his nomination was defeated by a 58-42 vote in the Senate, his name was verberized into a neologism that was [and occasionally still is] used almost exclusively in the passive voice.

To be “borked,” as his supporters would have it, is to be subjected to unfair criticisms based on distortions of your words, actions, and beliefs.  But his radically reactionary views on equal protection and sex discrimination were typical of his extreme and perverse positions. The mere fact that he was able to speak out in favor of a poll tax speaks volumes.  In reality, the borking of Bork consisted of subjecting him to valid criticism based on the precise meanings of his words, actions and beliefs.  Jeffrey Toobin explains.

Bork was “borked” simply by being confronted with his own views—which would have undone many of the great constitutional landmarks in recent American history. As Senator Edward Kennedy put it in a famous speech on the Senate floor, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, [and] writers and artists would be censored at the whim of government.”

Was Kennedy too harsh? He was not—as Bork himself demonstrated in the series of intemperate books he wrote after losing the Supreme Court fight and quitting the bench, in 1987. The titles alone were revealing: ”The Tempting of America,” “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” and “Coercing Virtue: The Worldwide Rule of Judges.” One of his last books may have summed up his views best. Thanks in part to decisions of the Supreme Court—decisions that, for the most part, Bork abhorred—the United States became a more tolerant and inclusive place, with greater freedom of expression and freedom from discrimination than any society in history. Bork called the book, accurately, “A Country I Do Not Recognize.”

Indeed, Bork’s words and actions were consistently anti-gay, anti-female, anti-minority, always favoring government intrusion over citizen’s rights, businesses over people, big business over small, and corporations over government.  His supporters would argue that these conclusions are based on principled positions, and that the outcomes, however repugnant to idealists, are therefore legitimate.  I argue instead that policies that consistently result in the contraction rather than the expansion of basic human rights, and that continually disadvantage definable target groups are corrupt at their core, and that the negative results are inherent and predictable.

After his defeat, Robert Bork gradually faded away from the public consciousness.  I can tell you, in the intervening 25 years, I gave him virtually no thought at all.

But Bork had enormous, possibly even dominant influence on the modern interpretation of anti-trust law, perhaps single-handedly redefining the scope and purpose of anti-trust legislation.  Basically, Bork was pro-efficiency and anti-anti-trust.  He had swallowed whole the bait-bucket of Chicago-economic-school ideas of market efficiency, and built the entire framework of his pro-trust belief system on that invalid foundation.

It seems fair to say that it is in some part because of Bork’s influence that we now have trans-national mega-corporations with huge oligopolies and near-monopolies.  These corporations have no inherent loyalty to anyone nor anything.  In my view, the oligarchs that run them do not even have a general sense of loyalty to stock-holders, let alone the broader universe of stake-holders, who mainly exist to be exploited.

Efficiency, in and of itself is a good thing.  But it cannot be achieved in a vacuum – frequently there are externalities that are largely negative.  For one thing, the efficiencies are mainly internalized and do not necessarily represent a more broadly efficient society.  Second, as a market gets concentrated, competition decreases and the pressure to improve, or even maintain status-quo efficiency slowly erodes.  This ultimately leads to a situation where big, lumbering and inefficient but extremely powerful entities control the economic and political landscape.  Yes, Big Oil, Big Pharma, Big Insurance, Big Finance, I am looking at you.

Perhaps worse, though, is the power asymmetry that results from size and influence.  Suppliers, customers, and the public at large are overwhelmed by the sheer might of these institutions, leading to even greater concentrations of power and wealth.

The end game is some version of economic collapse.  It happened in the 1930’s, and – due largely to neoclassical Chicago-style economic thinking that has over the last 40 years willfully unlearned the lessons of that time – it happened again in 2008.

Most of the time, evil doesn’t manifest as some cackling cartoon villain, mad-man on a murderous rampage, or even an unjust war waged on false pretenses.  It results instead, in a far more banal but far-reaching way, from the highly refined ideas of men like Robert Bork who value abstract concepts such as efficiency over the effects the programs they institute have on the lives of real human beings.