December 19, 2012
Robert Bork RIP
Posted by Gordon Smith

I never met Robert Bork, but I was an intern at the DC Court of Appeals in 1985, when he and Antonin Scalia were still on that court. The word among the staff and clerks at the Court was that one of those two would become the next nominee to the United States Supreme Court, if President Reagan were given the opportunity to nominate someone.

The next year, when William Rehnquist was elevated to Chief Justice on the retirement of Warren Burger, President Reagan had an opportunity to nominate a new Associate Justice. Should he nominate Scalia or Bork?

I don't know if this story is true, but I was told later by someone who claimed to be an insider that President Reagan nominated Scalia in part because he was younger than Bork and in better health. (Bork was a smoker.) If you want a justice to leave a legacy, it probably helps if the justice stays on the Court awhile. That was over 26 years ago.

Of course, Robert Bork would also get his nomination the year after Scalia was confirmed. The battle over Bork's nomination happened during my first year of law school, and it consumed much of the time and attention of the students and faculty at the University of Chicago. That seat eventually went to Anthony Kennedy.

After the Senate rejected Bork's nomination, I took Antitrust from Frank Easterbrook, who introduced me to The Antitrust Paradox. I know a lot of antitrust scholars criticize that book, but as a law student, I was enthralled by Bork's command of history and policy. He was a great writer. Reading that book made me think that being a law professor could be both fun and important, and I am grateful to Bork for that.

Robert Bork died today. He was 85 years old.

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