David Frum

12.19.12

What if Bork Hadn't Been Borked?

The blogger Potpourri for 500 considers the question:

If Bork had made it on the bench instead of Kennedy a host of rulings would have changed. We would not have Lawrence v. Texas and the threat of judicially imposed definitions of marriage. We would likely not have Heller either which made clear the Court would protect gun ownership as an individual right as the other bill of rights are enforced. Bork's textualism was also not likely to overturn a ton of democratically created laws. We would likely still be allowed to have the death penalty for rape and for killers under 18 both of which Kennedy struck down because of his devotion to European norms being imported in to our Constitution. His influence on Antitrust law--already monumental would have been staggering.

But the key thing is this. Putting aside his intellectual influence which would likely have been considerable. He would have died at the beginning of Obama's second term! This would give President Obama the chance to replace a "conservative' with another Kagan/Sotomayor. The Democratic Left would in one fell swoop have the Presidency, the Senate and the Court.

I will mourn Robert Bork but nothing so much as his passing brought some small silver lining to a terrible disappointment of my youth.