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Bork Redux, or How the Tempting of America Led the People to Rise and Battle for Justice, 69 Texas Law Review 759 (1991)


Like the man on the stair who wasn't there, the specter of Robert Bork's defeated nomination to the Supreme Court refuses to go away. Perhaps it is because Bork himself refuses to go quietly into the oblivion to which his most vigorous opponents sought to consign him. Nearly four years have passed since the Senate's decisive rejection of Bork by a vote of 58-42, both the largest number of votes and the largest plurality ever cast against a nominee for Associate Justice. Yet interest in the Bork battle seems never to wane. President Bush's successful nomination of David Souter to the seat vacated by Justice Brennan has in fact revived the debate, if any reviving was needed.

What is it about the Bork battle that continues to hold the American imagination? Robert Bork, in The Tempting of America: The Political Seduction of the Law, gives his own account of what happened to his nomination and offers a reason for the continuing furor. According to Bork, the debate is evidence of a cultural war in which his nomination was advertently snared. The fight, it seems, "was ultimately about whether intellectual class values, which are far more egalitarian and socially permissive, which is to say left-liberal, than those of the public at large and so cannot carry elections, were to be continued to be enacted into law by the Supreme Court." Thus, writes Bork, "[i]n the final analysis, the furor and the venom were less about me than about the issue of whether the Court would become dominated by the neutral philosophy of original understanding and thus decisively end its enlistment on one side of the war in our culture." In the world as Bork sees it, then, public interest in the battle over his nomination continues because the cultural war, the war for "left-liberal" hegemony, is still being fought.

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