IN THE WALL STREET JOURNAL, (free link) Gary McDowell writes on the Bork Battle’s legacy. I think he’s right that this represented a watershed of nastiness in confirmation fights, but I also think that Bork was an unsuitable nominee who deserved to be rejected. And I say this as someone who is, in fact, more of an originalist than Bork, whose originalism was of a rather dubious and frequently uninformed nature. This is given away in a passage of McDowell’s, where he writes:

In his sober constitutional jurisprudence there was no room for any airy talk about a general right of privacy, allegedly unwritten constitutions, vague notions of unenumerated rights, or what the progressive Justice Black once derided as “any mysterious and uncertain natural law concept.” For Mr. Bork, the framers said what they meant, and meant what they said.

Well, actually, here’s what the Framers said about unenumerated rights:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Denying and disparaging is pretty much what Bork did, especially with his famous characterization of the ninth amendment as an “inkblot.”

I responded to Bork’s theories on unenumerated rights at much greater length in this article, but this kind of talk, on the part of Bork and his supporters, does nothing for the cause of originalism.