Various commentators have discussed what the constitutional world
might look like now if Judge Bork had been confirmed as a Supreme Court
Justice. Jack Balkin writes:
Despite
Bork's defeat, movement conservatives actually got their hero. Clarence
Thomas has proven to be everything that Bork might have been, and more.
I rarely agree with Thomas's views, but my study of Thomas's opinions
in the past twenty years suggests to me that he may actually be a more
successful and intellectually interesting Justice than even Bork would
have been. (And that, of course, is saying something, given Bork's
background as Yale law professor and Solicitor General).
I am a
great admirer of Justice Thomas and so I think there is much to be said
for Jack’s view. But this view also misses something. As I said in my
earlier post,
Bork was a great innovator – even more so than Justice Thomas – and
therefore we don’t know what new approaches he might have developed on
the Supreme Court. Judge Bork’s later writings were less freedom
oriented than I would have liked and so it is possible his innovations
would have been unattractive. What is more, some of his most
interesting ideas
– that promoted freedom in a way – I found to be problematic on legal
grounds. But with an innovator like Bork, you just never know.
(Cross Posted on the Liberty Law Blog)
Posted at 7:30 AM