Courtesy of The New York Times
Robert H. Bork, a former solicitor general, federal judge and conservative legal theorist whose 1987 nomination to the United States Supreme Courtwas rejected by the Senate in a historic political battle whose impact is still being felt, died on Wednesday in Arlington, Va. He was 85.
His death, of complications of heart disease, was confirmed by his son Robert H. Bork Jr.
Judge Bork, who was senior judicial adviser this year to the presidential campaign of former Gov. Mitt Romney, played a small but crucial role in the Watergate crisis as the solicitor general under President Richard M. Nixon. He carried out orders to fire a special prosecutor in what became known as “the Saturday Night Massacre.” He also handed down notable decisions from the federal appeals court bench. But it was as a symbol of the nation’s culture wars that Judge Bork made his name.
They made their case in full-page advertisements, mass mailings and demonstrations and ceaseless lobbying of their senators. Since there was no question of his integrity or intelligence, the campaign and subsequent hearings by the Senate Judiciary Committee, run by Vice President Joseph R. Biden, who was a Democratic senator from Delaware at the time, focused on whether Judge Bork was “out of the mainstream.”
Two Supreme Court decisions were seen as especially vulnerable to being overturned by a bench with Judge Bork on it: the 1973 Roe v. Wade ruling, which barred states from banning abortion, and the 1978 Bakke case upholding affirmative action. During five days of testimony, much of it televised, Judge Bork declined to comment on how he would rule should those issues come up and argued further that what he had said in his life as a scholar and advocate would have little bearing on his judgments from the bench.
The White House also sought to portray him as a moderate. That, and his own assertion that he would look at the law with a fresh eye, gave off the whiff of hypocrisy, which made it easier for some senators to oppose him.
The American Bar Association’s committee on judicial nominees also split, with four of the 15 members calling him “not qualified,” because of concerns over his “compassion, open-mindedness, his sensitivity to the rights of women and minority persons or groups.”
Judge Bork, a bear of a man with a scraggly red beard and untamed frizz on a balding pate who liked to eat, drink and smoke for much of his adult life, handled himself poorly in front of the committee and failed to give doubters confidence. As Tom Shales, the television critic for The Washington Post, wrote of his testimony: “He looked, and talked, like a man who would throw the book at you — maybe like a man who would throw the book at the whole country.”
The most contentious part of the hearings occurred under questioning from Arlen Specter, a centrist Republican from Pennsylvania and a former prosecutor. Mr. Specter, who died in October, quoted Judge Bork as having written that under the Constitution, executive power had to evolve. Why then, Mr. Specter wanted to know, shouldn’t other constitutional concepts — like individual liberty — have a chance to evolve as well? The senator accused Judge Bork of selecting evolving rights based on his own preferences rather than neutral principles.
It was an accusation that stuck. So did the notion that the nominee was somehow unfeeling as a judge. This latter was amplified when, asked by a sympathetic senator, Alan Simpson, Republican of Wyoming, why he wanted to serve on the Supreme Court, Judge Bork replied that it would be “an intellectual feast.”
The committee voted, 9 to 5, to reject his nomination and sent it to the full Senate, which also turned him down.
After the defeat the White House picked Douglas Ginsburg, of the same federal appeals court in Washington, as its new nominee. But when it was discovered that he had smoked marijuana at Harvard, his nomination was withdrawn and replaced with that of Anthony M. Kennedy, a judge on the Ninth Circuit Court of Appeals in California.
In his hearings, Judge Kennedy, a mainstream, clean-cut conservative from Sacramento, made a point of distinguishing himself from Judge Bork by focusing on compassion and the need to respect Supreme Court precedents. His nomination sailed through the Senate. On the Supreme Court, he became an important centrist swing vote between liberal and conservative blocs and has consistently declined to overturn Roe v. Wade.
Judge Bork inspired a fervent generation of conservative legal thinkers. As America turned more conservative and President George W. Bush chose judges with views similar to his, many of Judge Bork’s acolytes and admirers ended up on the federal bench.
After his defeat, Judge Bork retired from the Circuit Court and took up positions at conservative ideological groups and law schools, writing and speaking against what he saw as the moral decline of the country at the hands of an elite, a theme he explored in a best-selling book.
In an interview in The American Spectator in 2002, he repeated his view that a liberal elite had hijacked the nation. “Churchgoers aren’t very powerful, given their numbers,” he said. “And the intelligentsia is powerful, far beyond their numbers, because they control the hype of television. They control Hollywood. They control the newspapers. They control the foundations. They control the universities.”
It is rare for the Senate in its constitutional “advice and consent” role to turn down a president’s Supreme Court nominee, and rarer still for that rejection to be based not on qualifications but on judicial philosophy and temperament. That turned Judge Bork’s defeat into a watershed event and his name into a verb: getting “borked” is what happens to a nominee rejected for what supporters consider political motives.
The success of the anti-Bork campaign is widely seen to have shifted the tone and emphasis of Supreme Court nominations since then, giving them an often strong political cast and making it hard, many argue, for a nominee with firmly held views ever to get confirmed.
Till the end of his life, Judge Bork argued that American judges, acting to please a liberal elite, have hijacked the struggle over national values by overstepping their role, especially in many of the most important decisions on civil rights and liberties, personal autonomy and regulation of business.
He advocated a view of judging known as “strict constructionism,” or “originalism,” which seeks to limit constitutional values to those explicitly enunciated by the framers and to reject those that evolved in later generations. He dismissed the view that the courts had rightly come to the aid of those neglected by the majority. By contrast, he felt that majorities, through legislatures, should be empowered to make all decisions not specifically addressed in the Constitution.
He most famously took issue with the Supreme Court’s assertion in the 1960s and ’70s that the Constitution implicitly recognizes a right of privacy that bars states from outlawing abortion or the use of contraceptives by married couples.
That position along with his rejection of court-mandated help to minority groups led a coalition of liberal groups to push successfully for his Senate defeat, motivated in no small part by their sense that he cared more about abstract legal reasoning than the people affected by it. They contended that his confirmation would produce a radical shift on a closely divided Supreme Court and “turn back the clock” on civil and individual rights.
Judge Bork, who was 60 at the time, was sitting on the United States Court of Appeals for the District of Columbia Circuit, often a steppingstone to the Supreme Court, when President Ronald Reagan announced on July 1, 1987, that he was nominating him to the high court to replace Lewis Powell, a moderate justice who was retiring. Within an hour of the announcement, Senator Edward M. Kennedy, the Massachusetts Democrat, set the tone for the bruising contest to come.
“Robert Bork’s America,” Mr. Kennedy said in a speech, “is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, school children could not be taught about evolution, writers and artists could be censored at the whim of government, and the doors of the federal courts would be shut on the fingers of millions of citizens for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.”
Judge Bork’s supporters considered every word of that attack a misrepresentation. But the fear that his confirmation would curtail settled rights, especially of blacks and women, created a national reaction.
An array of groups focused on civil and women’s rights, labor, consumer power and the environment began an extraordinary public campaign against him, arguing that his long and extensive record exposed a range of agendas and made him unfit for the job.
Robert Heron Bork was born on March 1, 1927, in Pittsburgh to Harry Bork, a purchasing agent with a steel company, and the former Elizabeth Kunkle, an English teacher. He attended the Hotchkiss School in Connecticut and recalled that he spent most of his early years “reading books and arguing with people.”
After a stint in the Marines guarding supply lines in China at the end of World War II, he went to the University of Chicago. Renowned conservative scholars there like Leo Strauss advocated a return to republican principles of “virtue” and hierarchy. Mr. Bork was a New Deal enthusiast, as was his wife, Claire Davidson, a fellow undergraduate whom he married in 1952. But by the early 1950s, while he attended the University of Chicago law school and became impressed with market-oriented conservatism, both had moved permanently to the right.
Mr. Bork discovered economics and became a libertarian opposed to government intervention and regulation. He began to evolve a similar theory of law, seeking what he called “neutral principles.” His major scholarly contribution, a 1978 book called “The Antitrust Paradox,” encouraged mergers and called for less antitrust regulation for efficiency’s sake. Students called a course he taught on the topic at Yale “protrust.”
Out of law school, Mr. Bork was hired by the prestigious Chicago firm of Kirkland and Ellis, where he spent eight years before taking a job teaching antitrust law at Yale in 1962. The Borks packed up their three children, Robert Jr., Charles and Ellen, and moved to New Haven, where he pursued his conservative ideas in a deeply liberal environment, campaigning for the Republican and archconservative Barry Goldwater’s election to the presidency in 1964.
He also wrote a fateful article for The New Republic in 1963 — one that played a key role in his 1987 defeat — condemning the public accommodation sections of the proposed 1964 Civil Rights Act aimed at integrating restaurants, hotels and other businesses. Mr. Bork said he had no objection to racial integration but feared that government coercion of private behavior threatened freedom.
The New Republic took the rare step of writing a reply, rejecting his reasoning and pointing out that restaurateurs were not legally permitted to reject service to well-behaved whites and that the new law intended simply to extend that principle to blacks. The editors also accused Mr. Bork of taking neutral principles out the window — an accusation he would hear more than once in his life.
A decade later, during his confirmation hearings for solicitor general, Mr. Bork said he had changed his mind and that his 1963 article had been a kind of thought experiment. But during the 1987 Supreme Court nomination battle, many cited the article as evidence that he had always been out of step in a way that harmed minorities.
The upheavals of the late 1960s drove Mr. Bork from libertarianism to social conservatism. Freedom — the cry of student activists — no longer stood as his supreme value. Tradition, order and hierarchy did. In a 1971 article in The Indiana Law Journal, he argued that the First Amendment’s protection of free speech had been wildly extrapolated beyond the intent of the Constitution’s framers. In a starkly narrow interpretation, he said free speech existed to perpetuate the process of self-government; therefore, he wrote, only explicitly political speech about governing was protected.
Mr. Bork worked for President Nixon’s re-election in 1972. He was rewarded with the nomination to solicitor general, a post he held for three and a half years and from which he advanced his beliefs on the constitutionality of the death penalty, the illegality of busing to achieve racial balance in schools and the power of the president over Congress.
Mr. Bork’s role in Watergate occurred in 1973, when President Nixon wanted to keep a special prosecutor, Archibald Cox, from gaining access to incriminating White House recordings and ordered him fired. The attorney general, Elliot L. Richardson, and his deputy refused and quit. Mr. Bork, as solicitor general, was next in line to carry out the president’s orders, and he did, firing Mr. Cox and his entire staff.
When Jimmy Carter, a Democrat, was elected in 1976, Mr. Bork returned to Yale. But it was a hard time for him. He had grown impatient with academic theorizing, and his wife, Claire, had developed cancer, which was spreading. She died in 1980, and he returned to Washington, first in private practice. After the election of President Reagan, he was nominated to the District of Columbia circuit court.
His five years on the federal bench showed a record of stark conservatism; he often denied plaintiffs the right to a court hearing, showed strong deference to the executive branch over Congress and gave wide latitude to business over government regulation.
One of his opinions, in Dronenburg v. Zech in 1984, dealt with the Navy’s power to fire a veteran for consensual homosexual activity. Judge Bork not only granted the Navy that power, but he also took the opportunity to make clear that a right of privacy did not exist in the Constitution. “If the revolution in sexual mores that appellant proclaims is in fact ever to arrive,” he wrote, “we think it must arrive through the moral choices of the people and their elected representatives, not through the ukase of this court.”
In 1982, at an event in which he was speaking, Judge Bork met Mary Ellen Pohl, a conservative activist and former nun. They married five months later. She, along with his three children and two grandchildren, survive him.
Judge Bork laid out his objections to much of what is handed down in American courtrooms in his best-selling book “The Tempting of America: The Political Seduction of the Law” in 1989, describing a raft of rulings as “judicial legislation” by inappropriately activist judges. He further said that he had become the symbol that liberals needed to destroy.
In 1996, he published “Slouching Toward Gomorrah: Modern Liberalism and American Decline,” also a best seller. This book took aim at egalitarianism, individualism and other liberal ideas, saying they go against natural law.
“A decline runs across our entire culture,” he wrote, and “the rot is spreading.”