Wednesday, January 28, 2009

ROBERT BORK

On February 12, 1992, it was my privilege to introduce Judge Robert Bork to a gathering at Michigan State University. I stand by what I said.

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REMARKS BY THOMAS E. BRENNAN


THE PEOPLE OF MICHIGAN OWE A DEBT OF GRATITUDE TO THE CITIZENS INSURANCE COMPANY FOR THEIR INSPIRING EXAMPLE OF RESPONSIBLE CORPORATE CITIZENSHIP. THESE SYMPOSIA, FOCUSING AS THEY DO ON VISIONS FOR THE 21ST CENTURY, PROVIDE OCCASIONS FOR ALL OF US TO PUT ASIDE, FOR A FEW PRECIOUS HOURS, THE NITTY AND THE GRITTY OF MAKING A LIVING, AND TURN OUR ATTENTION TO THE BIG PICTURE.

I AM ESPECIALLY GRATEFUL TO JERRY FAVERMAN AND PUBLIC SECTOR CONSULTANTS FOR THE HONOR THEY HAVE BESTOWED UPON ME HERE THIS AFTERNOON.

FOR A LAWYER, A JUDGE AND SOMETIME LEGAL AUTHOR AND EDUCATOR, THERE COULD BE NO MORE DELICIOUS ASSIGNMENT THAN TO PRESENT THE HONORABLE ROBERT HERON BORK TO AN AUDIENCE SUCH AS IS ASSEMBLED IN THIS ROOM.

CERTAINLY OUR SPEAKER TODAY IS RECOGNIZED AS THE QUINTESSENTIAL LEGAL SCHOLAR OF OUR TIME. HIS 19 YEARS ON THE FACULTY OF THE YALE LAW SCHOOL, DURING WHICH TIME HE HELD THE CHANCELLOR KENT AND ALEXANDER BICKEL CHAIRS AND HIS CURRENT APPOINTMENT AS JOHN M. OLIN SCHOLAR IN LEGAL STUDIES AT THE AMERICAN ENTERPRISE INSTITUTE, WOULD BE ENOUGH TO QUALIFY HIM FOR THAT APPELLATION, EVEN WITHOUT THE MYRIAD HONORS AND AWARDS HE HAS RECEIVED OR THE PLETHORA OF COMMITTEES AND BOARDS UPON WHICH HE HAS SERVED.

LET ME GIVE YOU A PASSING GLIMPSE OF A CURRICULUM VITAE THAT SPARKLES WITH ACADEMIC ACHIEVEMENT AND LEADERSHIP:
- MEMBER OF A PRESIDENTIAL TASK FORCE ON ANTI-TRUST;
- CONSULTANT TO A CABINET COMMITTEE ON EDUCATION;
- TRUSTEE OF THE WOODROW WILSON INTERNATIONAL CENTER FOR SCHOLARS;
- FELLOW OF THE AMERICAN ACADEMY OF ARTS AND SCIENCES;
- MEMBER OF THE BOARD OF GOVERNORS OF THE SMITH RICHARDSON FOUNDATION;
- OF THE LEGAL ADVISORY BOARD OF THE NATIONAL LEGAL CENTER FOR THE PUBLIC INTEREST;
- THE BOARD OF DIRECTORS OF THE INSTITUTE FOR EDUCATIONAL AFFAIRS;
- THE DEVELOPMENT BOARD OF THE FEDERALIST SOCIETY FOR LAW AND PUBLIC POLICY STUDIES;
- THE ADVISORY BOARD OF THE CENTER FOR CHRISTIANITY AND THE COMMON GOOD.

THERE IS MORE.
HE HOLDS THE SHELBY CULLOM DAVIS AWARD FROM THE ETHICS AND PUBLIC POLICY CENTER, AND HONORARY DEGREES FROM CREIGHTON UNIVERSITY, WILKES-BARRE COLLEGE, NOTRE DAME LAW SCHOOL, BROOKLYN LAW SCHOOL, DE SALES SCHOOL OF DIVINITY, AND ADELPHI UNIVERSITY.

IN 1984 JUDGE BORK RECEIVED THE PRESTIGIOUS FRANCIS BOYER AWARD FROM THE AMERICAN ENTERPRISE INSTITUTE FOR PUBLIC POLICY RESEARCH. I WAS PRIVILEGED TO BE IN THE AUDIENCE ON THAT OCCASION TO HEAR HIM DELIVER HIS MAGNIFICENT BOYER LECTURE.

IF LEGAL SCHOLARSHIP WERE JUDGE BORK'S ONLY ACCOMPLISHMENT, HIS PLACE IN AMERICAN LEGAL AND EDUCATIONAL ANNALS WOULD BE SECURE.

BUT OF COURSE, THERE IS MORE. MUCH, MUCH MORE.
WE SOMETIMES HEAR IT SAID THAT THOSE WHO CAN DO, DO; WHILE THOSE WHO CANNOT DO, TEACH.

OUR DISTINGUISHED GUEST SPEAKER HAS SUCCEEDED BOTH IN AND OUT OF THE ACADEMY.

HE SERVED IN THE UNITED STATES MARINE CORPS DURING WORLD WAR II, AND ON HIS DISCHARGE EARNED A LAW DEGREE AT THE UNIVERSITY OF CHICAGO.
ON GRADUATING, HE WAS RECALLED TO ACTIVE DUTY WITH THE MARINES IN KOREA. RETURNING AGAIN TO CIVILIAN LIFE, JUDGE BORK PRACTICED LAW AS AN ASSOCIATE AND A PARTNER IN THE MEGA LAW FIRM OF KIRKLAND AND ELLIS.

HE SERVED FOR FOUR YEARS AS THE SOLICITOR GENERAL OF THE UNITED STATES, INCLUDING TWO CRISIS YEARS AS ACTING ATTORNEY GENERAL IN THE EARLY 1970s.
APPOINTED CIRCUIT JUDGE, HE SAT ON THE UNITED STATES CIRCUIT COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA FROM 1982 TO 1988.

THIS LIFETIME OF DEDICATION AND SERVICE TO OUR NATION AND ITS LAWS HAS EARNED OUR SPEAKER, AS OF RIGHT IT SHOULD, A POSITION OF SINGULAR RESPECT AND ADMIRATION AMONG THOSE WHO READ THE LAW AND ADMINISTER JUSTICE IN OUR LAND.

BUT IT IS A CURIOUS TRUTH THAT FOR ALL OF THESE EXTRAORDINARY CREDENTIALS, ROBERT HERON BORK'S MOST CERTAIN PLACE IN AMERICAN HISTORY WILL BE THAT OF A PRESIDENTIAL NOMINEE TO THE SUPREME COURT OF THE UNITED STATES WHOSE APPOINTMENT TO THAT AUGUST BODY FAILED FOR WANT OF THE ADVICE AND CONSENT OF THE UNITED STATES SENATE.

IN RECENT MONTHS, THE AMERICAN PEOPLE HAVE BEEN TITILLATED, IF NOT SCANDALIZED, BY THE RAW HUMANITY OF THE CLARENCE THOMAS CONFIRMATION HEARINGS. THERE HAS BEEN MUCH TALK OF THE LEWDNESS, THE TRIVIALITY AND THE INAPPROPRIATENESS OF THE SENATORIAL CONFIRMATION PROCESS.

OUR SPEAKER TODAY RAN THAT BANAL GAUNTLET IN 1987. IN A FORUM REPLETE WITH DEMAGOGUES PANDERING FOR PUBLIC ACCLAIM, HE DEFENDED WITH UNASSAILABLE LOGIC AND SCHOLARLY CERTITUDE THE PROPOSITION THAT THE CONSTITUTION OF THE UNITED STATES DOES NOT FRANCHISE THE SUPREME COURT TO RULE THE NATION BY ITS EDICTS.

AS WE PONDER, AT THE INVITATION OF THE CITIZENS INSURANCE COMPANY AND PUBLIC SECTOR CONSULTANTS, VISIONS FOR THE 21ST CENTURY, IT MAY BE WELL TO ASK OURSELVES WHETHER THE 20TH CENTURY WAS NOT THE AGE IN WHICH THE CONSTITUTION OF THE UNITED STATES WAS SWEPT AWAY BY A FLOOD OF LEGALISTIC SOPHISTRY, A TIDAL WAVE OF PRAGMATISM.

MORE THAN 20 YEARS AGO FORMER ATTORNEY GENERAL RAMSEY CLARK AND SENATOR SAM ERVIN DEBATED WHETHER THE SUPREME COURT WAS A POLICYMAKER OR AN ADJUDICATOR. IN TOO MANY AMERICAN LAW SCHOOLS, THAT DEBATE IS NEITHER ECHOED NOR WELCOMED.

FELIX FRANKFURTER TOLD HIS STUDENTS AT HARVARD THAT THE SUPREME COURT IS THE CONSTITUTION, AND THE ADHERENTS OF NOSE COUNT JURISPRUDENCE WERE NEVER MORE IN THEIR ASCENDANCY THAN IN THESE DAYS OF ROE V WADE REVISITED.

A CENTURY AGO THE POWERFUL PEN OF THOMAS MCINTYRE COOLEY WROTE:
"A CARDINAL RULE IN DEALING WITH WRITTEN INSTRUMENTS IS THAT THEY SHALL RECEIVE AN UNVARYING INTERPRETATION...
"A CONSTITUTION IS NOT TO BE MADE TO MEAN ONE THING AT ONE TIME, AND ANOTHER AT SOME SUBSEQUENT TIME WHEN THE CIRCUMSTANCES MAY HAVE SO CHANGED AS PERHAPS TO MAKE A DIFFERENT RULE IN THE CASE SEEM DESIRABLE.
"A PRINCIPLE SHARE OF THE BENEFIT EXPECTED FROM WRITTEN CONSTITUTIONS WOULD BE LOST IF THE RULES THEY ESTABLISHED WERE SO FLEXIBLE AS TO BEND TO CIRCUMSTANCES OR BE MODIFIED BY PUBLIC OPINION.
"IT IS WITH SPECIAL REFERENCE TO THE VARYING MOODS OF PUBLIC OPINION, AND WITH A VIEW TO PUTTING THE FUNDAMENTALS OF GOVERNMENT BEYOND THEIR CONTROL, THAT THESE INSTRUMENTS ARE FRAMED; AND THERE CAN BE NO SUCH STEADY AND IMPERCEPTIBLE CHANGE IN THEIR RULES AS INHERES IN THE PRINCIPLES OF THE COMMON LAW."
"THE OBJECT OF CONSTRUCTION, AS APPLIED TO A WRITTEN CONSTITUTION," INSISTED JUDGE COOLEY, "IS TO GIVE EFFECT TO THE INTENT OF THE PEOPLE IN ADOPTING IT."

IN OUR DAY, MORE THAN ANY IN THE NATION'S HISTORY, THE CONSTITUTION NEEDS VIGOROUS AND TIRELESS DEFENDERS. ALL AROUND THE WORLD MEN AND WOMEN ARE STRUGGLING WITH THE UNFAMILIAR TASK OF ESTABLISHING NEW FORMS OF GOVERNMENT.

THOMAS PAINE WROTE THAT GOVERNMENT IS A NATURAL RIGHT AND THAT IT IS INFINITELY WISER TO FORM A CONSTITUTION IN A COOL, DELIBERATE MANNER THAN TO TRUST TO TIME AND CHANCE.

AND ALEXANDER HAMILTON OBSERVED THAT IT WAS FOR THE PEOPLE OF THIS COUNTRY TO DECIDE WHETHER SOCIETY IS CAPABLE OF ESTABLISHING GOOD GOVERNMENT BY REFLECTION AND CHOICE, OR WHETHER WE ARE FOREVER DESTINED TO DEPEND FOR OUR POLITICAL CONSTITUTIONS ON ACCIDENT AND FORCE.

IF THE UNITED STATES OF AMERICA IN THE 21ST CENTURY IS TO BE A BEACON OF RATIONAL CHOICE TO THE EMERGING DEMOCRACIES OF THE WORLD, WE WILL SIMPLY HAVE TO DO MORE OF WHAT YOU AND I ARE HERE TO DO THIS AFTERNOON:

LISTEN TO THE VOICE OF REASON; THE VOICE OF SCHOLARSHIP; THE VOICE OF PRACTICAL EXPERIENCE IN THE ADMINISTRATION OF JUSTICE UNDER A SOLEMN POLITICAL COMPACT ORDAINED TO BE THE SUPREME LAW OF THE LAND.

IN SUM, TO HEED THE VOICE OF OUR MOST EMINENT AND LEARNED AND FORTHRIGHT GUEST - THE HONORABLE ROBERT HERON BORK.

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