Mark Baisley

As the credits begin to roll on the year 2012, I would like to take proper note of the recent loss of one of America’s most compelling figures, Judge Robert Heron Bork.  Robert Bork died on December 19 in Arlington, Virginia at the age of 85 due to complications of heart disease.

I never had the honor of meeting Judge Bork.  But his book, The Tempting of America, has become a regular reference artifact for me personally.  In this taut tome, Bork effectively teaches the intended mission of the Supreme Court of the United States.  He explains the crucial role that an impartial court must play, interpreting the legitimacy of laws in light of the original intent of the Constitution.

Bork also chronicles the corruption of the Supreme Court on several occasions by U.S. Presidents and appointed justices who see this branch of government as an expedience trump card privilege.  Perhaps the most salient excerpt is, "In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government. Yet the desire to do justice, whose nature seems to him obvious, is compelling, while the concept of constitutional process is abstract, rather arid, and the abstinence it counsels unsatisfying. To give in to temptation, this one time, solves an urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should."

Bork released The Tempting of America in 1997, ten years after becoming the first victim of senatorial rejection by character assassination, introduced on live television by Ted Kennedy.  Senator Kennedy set the tone for considering President Ronald Reagan’s nomination for the Supreme Court with, “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, writers and artists could be censored at the whim of the government.”

The eminently qualified intellectual, practicing attorney, former solicitor general, acting attorney general of the United States, United States Court of Appeals judge, distinguished fellow at the Hudson Institute and professor of constitutional law at Yale Law School was denied an appointment to the United States Supreme Court.  Jack Coleman referred to the disrespectful treatment of Judge Bork as “the opening salvo in our decades-long culture war.”  In March of 2002, the word “Bork” was added to the Oxford English Dictionary defined as to “obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them.”

This shameful episode in U.S. politics created a blank page in American history that should have been filled with volumes of wise jurisprudence.  The Bork hearings were more pivotal than the Oliver North Contra Hearings or Mr. Smith’s Washington filibuster ;-)  The last two appointments to the Supreme Court would barely qualify to clerk for the likes of Robert Bork.

Soon after Judge Bork stepped through the Pearly Gates on the evening of December 19, he made his first request of St. Peter.  “Can you tell me where I can find Ted Kennedy?  I think it would be time for us to reconcile; let bygones be bygones.”  

“”I’m sorry, Judge.  There is no Ted Kennedy up here.”


Mark Baisley

Mark Baisley is a security and intelligence professional