The Tempting of America

by Robert H. Bork

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Last Updated on September 5, 2023, by eNotes Editorial. Word Count: 533

Robert H. Bork was a distinguished but controversial United States jurist holding such positions as Solicitor General of the United States, Acting US Attorney General, and US Court of Appeals judge. Despite Bork’s impressive credentials and expansive body of written opinion, Bork was rejected by the US Senate when President Ronald Reagan nominated him for a seat on the Supreme Court. Bork details his experience in this nomination process, as well as the criticism he endured from those who were opposed to his judicial philosophy.

Up to this point in American history (circa 1982), a Supreme Court nominee was generally evaluated only on their merit regarding their competence as a judge and their expertise in the law. This nomination was one of the first in which the vote was based not only on a nominee's professional capacity to serve, but also on his legal-philosophical and political leanings.

In his book, Bork discusses what, in his own view, were personal and inaccurate attacks on him led by Senator Ted Kennedy, who in his condemnation of Bork employed a vision of an America returning to some of the worst parts of its history if Judge Bork were to be appointed.

The division in America at the time of Bork’s nomination was largely one of progressive views clashing with conservative views. Progressives were open to the idea of “judicial activism.” Bork writes that the dangers of judicial activism are judges who “create law” rather than interpret the law. Bork’s judicial philosophy is in direct opposition to that of the progressives; it is one of “originalism,” meaning that the duty of a judge is not to create law but to interpret law within the constraints of the Constitution. As “originalists,” Bork and those following his legal philosophy believe that the Founding Fathers created three distinct branches of government, namely the legislative, the executive, and the judicial. Originalist philosophy does not permit the mingling of the specific duties (as well as limitations) of the three branches. Just as a US president (the executive) is not permitted to create law, for that is the purview of the legislative branch, the judiciary branch is not permitted to create law according to originalist philosophy.

Bork, in his book, speaks of “judicial restraint.” This is the understanding by judges that their powers as jurists are limited by law: that judges should not make subjective rulings or pronouncements on cases but, instead, should use the framework of the US Constitution as the basis for their decisions. Bork, however, believes that for well over 150 years there has been a steady erosion of this judicial restraint, and judges and justices, when given the opportunity, will inject their own personal views into decisions, giving them a role and power never intended by the Constitution. Originalists argue that one current example is various courts ignoring the 10th Amendment to the US Constitution, which states that unless a power or right is specifically delineated in the Constitution as a right for the federal government, that right belongs to the states. Only the legislative branch (elected by the people) has the right to change the law by passing new laws or by legally changing the US Constitution.

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