Professor John Harrison Remembers Robert Bork
University of Virginia law professor John Harrison served as a clerk for Robert Bork on the U.S. Court of Appeals for the District of Columbia Circuit and also was a student of Bork's at Yale Law School. Bork, a former U.S. solicitor general and nominee to the U.S. Supreme Court in 1987, died on Wednesday.
The political battle over Bork's ultimately unsuccessful nomination is widely considered a turning point in the politicization of federal judicial nominations.
"All law students and former law students know that the learning curve in the first semester is steep. Ours was almost vertical in Constitutional Law I in the fall of 1977. The professor had just returned from being Solicitor General of the United States and was pretty well versed in the subject. More striking was the intellectual challenge he presented to us. Not only were his views out of tune with those of most of his students, not to mention most of his colleagues on the faculty, but his wit was always ready to slice through a bad argument. One day a student unknowingly assumed the conclusion, and the professor explained that circular arguments do have the advantage of not being false, but the disadvantage of not telling you anything new. When one of your teacher's characteristic statements is, "what we all 'know' is wrong" (he wrote that in "The Antitrust Paradox"), be prepared to find out how little you actually know.
"At that point Robert Bork was already a major figure in American law, mainly because of his revolutionary work in antitrust, and somewhat famous, mainly for dismissing Watergate Special Prosecutor Archibald Cox when he was acting attorney general. He had already been considered for the Supreme Court seat to which John Paul Stevens ultimately was appointed. As it turned out, all that was just the prelude. President Reagan appointed him to the D.C. Circuit in 1982, and nominated him to the Supreme Court of the United States in 1987. Being Robert Bork, he told the Senate Judiciary Committee, and a watching nation, what he thought, and defended his views with vast erudition, vigor, and maybe a bit too much of that famous wit for his own good. When the Senate rejected his nomination, some thought that the country had narrowly avoided disaster. Others, like me, thought that we had witnessed something like the trial of Socrates, with a similar but happily more restrained result. Whatever one makes of the outcome, all subsequent Supreme Court nominations and confirmations have taken place in the shadow of the Bork nomination. And debates about American constitutional law are conducted in the shadow of Bork's contribution to it.
"Shortly after his appointment to the D.C. Circuit, Judge Bork interviewed me for a clerkship. During the interview he took a phone call, I think from his old law school friend and new judicial colleague Abner Mikva. Bork said, "They say I've been appointed, but I haven't received my commission yet. What if they won't give me the commission? Should I sue someone?" Never pass up a good Marbury joke."