The Bork Nomination

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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11 Responses

  1. A.W. says:

    it was pretty dull because the democrats don’t seem to care very much about principles.

    if they did, then they would notice in canon 3 of the code of judicial ethics where it says that a judge should recuse herself if there is a reasonable question to her impartiality. Yesterday she admitted that those who interpreted it to mean that wise latinas are better at making sound judgments than wise white guys were being reasonable, even if that isn’t what she meant. thus a reasnonable question has been raised. thus she should recuse herself in any case involving white males, latina females, or discrimination. Which of course means she would have to recuse herself from so many cases she won’t be able to serve in any meaningful capacity. So her nomination should be withdrawn.

  2. Gerard Magliocca says:

    What does that have to with the post about President Reagan and Judge Bork?

  3. Joe says:

    I fully agree. When exactly did this country get to the place that a guilty criminal could walk free because of a technicality during his arrest or trial?

  4. PG says:

    I had been under the impression that Bork was “toast” (which, by the way, is the security word for this comment) because he couldn’t reconcile the result in Brown v. Board with his originalist philosophy of jurisprudence, and even some Republicans were worried about how it would look to endorse the idea that the Constitution permits state-mandated racial segregation.

    That’s why Michael McConnell is such a godsend to originalists. “No, see, if you just do originalism based on the people who *sponsored* the amendment/statute, and ignore everyone else who voted for it, originalism totally fits with forbidding racial segregation!”

    Although even McConnell’s theory couldn’t cure Bork’s opposition to incorporation.

  5. krs says:

    PG writes: “I had been under the impression that Bork was “toast” (which, by the way, is the security word for this comment) because he couldn’t reconcile the result in Brown v. Board with his originalist philosophy of jurisprudence”

    I think Bork does that in Tempting America, at pp. 81-83, and in a way that’s much more convincing than McConnell’s arguments. See also 47 Indiana Law Journal 1, 15 (1971)for more discussion by Bork about why Brown was correct.

    My impression was that his nomination was toast because of Senator Kennedy’s speech, because of Bork’s candor during his confirmation hearings, and because the people preparing him for the hearings totally misjudged how he’d be received.

  6. A.W. says:


    I never heard Bork say anything that definitively said that Brown was not justifiable on original intent. The idea that Brown would be overturned was Ted Kennedy’s histrionics, not Bork’s philosophy. Bluntly no one (of consequence) wants to overturn Brown.

    Further, McConnel does base his argument on the voters, too. He points out for instance, that all across the north the state schools were desegregated. Really, bluntly, i don’t know what you are talking about.

  7. A.W. says:


    off topic or not, what about the argument?

  8. Volokh's Gay Lover says:

    I also have to question if we should readdress technicalities when it comes to dismissing a court case. You obviously have to have a technicality mean something significant to prosecutors or else they won’t be nearly as concerned as they currently are.

    Imagine you had one woman that went on a killing spree and was videotaped with 10,000 eye witnesses killing President Clinton, Bush Sr, Bush Jr, Obama, and 10 other people. She’s got detailed plans at her home and in her car for how to do it, etc. There currently are technicalities that are so severe that any decent Judge would have to throw that case out and any other possible prosecutions out.

    The Constitution of 1787 permits state-mandated racial segregation. It literally does. It’s absolutely fucked up to think about but it does. Honestly it’s quite frankly a time to admit that the Constitution needs to be gotten away from and we need to adopt a new document to replace it.

  9. PG says:


    Bork’s 1990 “Tempting America” post-dates his confirmation hearings, so it’s not a certain guide to what he was saying in 1987. Both it and his 1971 Indiana Law Journal article share a couple of fatal weaknesses:

    (1) Underplaying the fact that the reason Topeka KS was the lead case in Brown is that in Topeka, they *were* making the separate schools equal. In other words, separate-but-equal was looking like a sincere possibility there, which meant that segregation itself, not inequality of facilities, had to be challenged.

    (2) Stating “equality and segregation were mutually inconsistent, though the framers did not understand that.” As Jed Rubenfeld has pointed out, if we can still call ourselves originalists merely by hewing to what we believe to be the underlying principles of the Constitution while ignoring how those principles were understood at the time they became written into the Constitution — because the framers, poor souls, were just too ignorant to grasp what “equality” requires — then we can run wild and declare the death penalty to be “mutually inconsistent” with the prohibition on cruel and unusual punishment, even if the Framers of the 8th Amendment clearly saw no such inconsistency. (This reminds me of Justice Kennedy’s deciding in Leegin that it was OK to ignore Congress’s preference as expressed through the CGPA regarding vertical price-fixing, because he was trying to achieve the same *goal* of improving competition as the CGPA.)

    As noted below, there was segregation in some Northern schools as well; it’s not like Congressmen from Northern states could be blissfully unaware of the effect on black children’s education of putting them in separate schools.


    “all across the north the state schools were desegregated.”

    You might want to read “Jim Crow Moves North: The Battle Over Northern School Segregation, 1865-1954,” particularly if you grew up outside the South and you’ve never heard anything other than the Manichean narrative of “Southerners were wicked racists but Northerners were good enlightened people who were happy to send their kids to school with black kids.” Here’s an interview with the author to give you an idea. Kansas was a Union state, but again: Board of Education of *Topeka KS*.

  10. krs says:

    Interesting points, PG. I wasn’t aware of the first one. The second one I think I disagree with, but I don’t think that matters for now.

    What’s your basis for saying that Bork’s nomination was toast “because he couldn’t reconcile the result in Brown v. Board with his originalist philosophy of jurisprudence, and even some Republicans were worried about how it would look to endorse the idea that the Constitution permits state-mandated racial segregation”?

    As I read the 1971 Indiana Law Review article, Bork’s position was that Brown reached the correct result and that the Constitution did *not* permit state-mandated racial segregation. I understand that you think his logic is flawed, but that’s quite different from what you said in the first post.