By Jeff Greenfield
Robert Bork, who died today, will be best-remembered for two things: First, he was the solicitor general who, the night of the 1973 "Saturday NIght Massacre", obeyed Richard Nixon's directive to fire Archibald Cox, the Watergate special prosecutor, when Attorney General Eliot Richardson refused to do so. Second, he was rejected by the Senate after President Ronald Reagan nominated him to the Supreme Court; the Democratic majority considered his constitutional views to be outside the mainstream.
I have another memory: He was a professor at the Yale Law School. In that capacity, he was as bracing a figure as a student could hope to find.
Without question Bork was out of the mainstream of the Yale Law School in the mid-1960s, when I was a student there. He was possibly the only member of the faculty to support Barry Goldwater for president. But that made him exactly the right person to teach, and to challenge, the assumptions of an overwhelmingly liberal group of students. I still remember the last question he posed to his first year constitutional law class: "Write a dissenting opinion in Brown v. Board of Education,” the Court's 1954 opinion that outlawed racial segregation in public schools.
Was this evidence of Bork's Neanderthal views on civil rights? I thought (and still think) otherwise. He was asking students to wrestle with legal concepts on which the opinion itself--which was unanimous--cast no light. He was asking us to go beyond our own convictions, and to think imaginatively. And yes, I'm sure there was an element of puckishness as well.
That same spirit was on display in a seminar Bork conducted, along with another legendary Yale law professor, Alexander Bickel. We spent weeks arguing--or, rather, listening to Bork and Bickel argue--about a single hypothetical case. A group of passengers flee a sinking ship for a lifeboat on which there is one passenger too many. A very wealthy passenger offers a deal to an impoverished crew member: Give up your seat to me and I will ensure your family financial security for generations. The question: Should American courts allow that contract to be enforced?
In the years after his Supreme Court rejection, Bork became a dyspeptic, partisan figure. On this day, I choose to remember him as a teacher who succeeded in the single most important job: He taught us how to think.
By Jeff Greenfield