Robert H. Bork, the conservative legal champion whose bitter defeat for a Supreme Court seat in 1987 politicized the confirmation process and changed the court’s direction for decades, died Wednesday. He was 85.
The former Yale law professor and judge on the U.S. Court of Appeals for the District of Columbia Circuit died at Virginia Hospital Center in Arlington, Va., from complications of heart disease, said his son Robert H. Bork Jr.
A revered figure on the right, Bork inspired a generation of conservatives with his critiques of the liberal-dominated high court in the 1960s and ‘70s. In speeches, law reviews and op-ed articles, Bork argued that the liberal justices were abusing their power and remaking American life by ending prayers in public schools, extending new rights to criminals, ordering cross-town busing for desegregation and striking down laws on birth control, abortion and the death penalty. Bork said the Constitution, as originally written, left these matters to the wishes of the majority.
Bork was more than a legal theorist. He was also a highly regarded constitutional lawyer. When he served as U.S. solicitor general under Presidents Nixon and Ford, the Supreme Court justices praised Bork as one of the finest advocates they had ever seen.
As solicitor general, he served as a footnote to the Watergate scandal that brought down Nixon. In what became known as “the Saturday Night Massacre,†the embattled chief executive ordered the firing of special prosecutor Archibald Cox because he had demanded Nixon’s secret White House tapes. The attorney general and then the deputy attorney general resigned rather than carry out the order. Bork, who was then in the No. 3 post as solicitor general, carried out the order and fired Cox.
When Ronald Reagan was elected president in 1980, Bork’s name rose to the top of the list of potential court nominees. Reagan aspired to transform the Supreme Court, and Bork, then teaching law at Yale, was offered a seat on the Court of Appeals in Washington. It was seen as a stepping stone to the high court.
But it turned into a long wait for Bork.
Reagan chose Sandra Day O’Connor in 1981, fulfilling a campaign promise to appoint the first woman to the Supreme Court. A fateful moment came in 1986 when a second seat became vacant. Reagan and his advisors passed over Bork for his younger colleague, then-Judge Antonin Scalia, who won a unanimous confirmation in a Senate still under Republican control.
Bork’s time finally came in the summer of 1987 when Justice Lewis Powell, the swing vote on the closely divided court, announced his retirement. By then, however, the Democrats had taken control of the Senate, and Reagan had been weakened by the Iran-Contra scandal.
On July 1, 1987, Reagan introduced the burly, bearded Judge Bork as his nominee, but within an hour the president’s words were drowned out by a fierce attack from Capitol Hill led by Sen. Edward M. Kennedy (D-Mass.).
“Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, [and] rogue police could break down citizens’ doors in midnight raids,†Kennedy said. No one could remember such a harsh assault on a president’s court nominee, and it set the tone for a campaign-style attack that lasted into the fall.
Bork gave the Democrats plenty of ammunition, however.
As a Yale professor in 1963, he had condemned the pending civil rights bill that would have given blacks an equal right to be served in hotels, restaurants and other public places across the nation. He called this a threat to individual freedom, and he advised Arizona Sen. Barry Goldwater, the Republican presidential nominee, to cast a “no†vote against what became the Civil Rights Act of 1964. Bork wrote critically of the Voting Rights Act and various school desegregation measures. He also denounced the court’s “right to privacy†rulings that led to the Roe vs. Wade decision guaranteeing a woman’s right to have an abortion.
When Bork made his case before the Senate Judiciary Committee, he faced a hostile majority of Democrats, including its new chairman, Sen. Joseph Biden of Delaware. Because of his long “paper trail,†Bork had no choice but to try to explain his views. He did so, at length, but he did not win over many converts. And viewers watching on television told pollsters they saw the stiff, scowling judge as an intimidating figure. Bork helped his opponents paint a portrait of him as a nominee who was more attuned to legal theory than to doing justice. When asked why he wanted to serve on the nation’s highest court, Bork told one senator the job would be “an intellectual feast.â€
When the hearings ended, the Reagan White House knew Bork could not be confirmed. But the judge refused to withdraw, and the Senate rejected his nomination on a 58-42 vote.
Conservatives were furious, insisting that partisan attacks had maligned the reputation of one of the most accomplished jurists to come before the Senate. The phrase “to bork†became shorthand for inflicting a harsh, unfair public attack. Liberals and Democrats countered that Bork went down to defeat because most Americans did not share his views.
But no one disputed that the Bork battle changed how presidents choose nominees and how the Senate debates them. In the wake of Bork’s defeat, presidential legal advisors looked for judicial nominees who had said or written little on the major legal controversies. In 1990, for example, President George H.W. Bush chose a little-known New Hampshire judge for the Supreme Court because his views were unknown. Justice David H. Souter easily won confirmation, but then surprised his Republican backers when he became a reliable liberal on the court.
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Court nominees after Bork refused to follow his tack of seeking to explain his views in answer to questions from senators, instead choosing to duck them. Bork’s defeat also had a profound and lasting impact on the Supreme Court itself. Had Bork won confirmation, the court’s conservative bloc, led by Chief Justice William H. Rehnquist, would have had a majority to overturn Roe vs. Wade as well as the strict ban on school-sponsored prayers and invocations. Instead, Justice Anthony M. Kennedy, the Reagan nominee who eventually filled Powell’s seat, cast a deciding vote in 1992 to preserve the right to abortion and the ban on school prayers. Kennedy has also been a strong foe of laws that discriminate against gays and lesbians, and he is seen as holding the decisive vote in the upcoming cases involving same-sex marriage.
Bork’s influence on conservative legal thought was also lasting. In the 1970s, he was among the first to argue for interpreting the Constitution based on its “original intent,†an idea that was later championed by Scalia and Justice Clarence Thomas.
As a scholar of antitrust law, Bork helped fundamentally change the thinking behind the law. He criticized those who targeted “big†businesses as monopolies and said antitrust law should focus instead on the welfare of consumers. At Yale, students joked that Bork taught “pro-trust,†not antitrust. But his views are now widely accepted.
Bork stepped down from the bench a year after his Senate defeat, and he wrote several books renewing his criticism of liberalism. In the last year, he served as a chairman of Republican presidential nominee Mitt Romney’s advisory committee on the judiciary and the courts.
Scalia praised Bork as “one of the most influential legal scholars of the past 50 years. His impact on legal thinking in the fields of antitrust and constitutional law was profound and lasting. More important for the final accounting, he was a good man and a loyal citizen.â€
Bork was born in Pittsburgh on March 1, 1927, and served in the Marines. He graduated from the University of Chicago and its law school and worked as a lawyer in New York and Chicago before joining the Yale faculty in 1962.
His first wife, Claire Davidson, died in 1980. He married Mary Ellen Bork, a former nun, in 1982. She survives him, along with three children from his first marriage, sons Robert and Charles Bork and daughter Ellen Bork, and two grandchildren.
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