Robert H. Bork

Robert H. Bork (born March 1, 1927, Pittsburgh, Pennsylvania, U.S.—died December 19, 2012, Arlington, Virginia) was an American legal scholar, federal judge, and onetime U.S. solicitor general (1973–77) whose nomination to a seat on the U.S. Supreme Court by Republican Pres. Ronald Reagan in 1987 was rejected by a bipartisan majority of the U.S. Senate.

The opposition to Bork’s nomination among Democrats and some moderate Republicans was unusual at the time for its focus on Bork’s conservative jurisprudence and his confrontational demeanor rather than on his professional qualifications. The sharp criticisms of Bork circulated by Democrats and liberal interest groups were regarded by Bork’s supporters as an unjust political attack—a strategy that Republicans later characterized as the “borking” of a nominee. Some historians and many Republicans later cited Bork’s rejection as marking a shift in the manner in which the Senate evaluated judicial nominees, many of whom were thereafter subject to critical scrutiny or outright opposition on largely partisan grounds.

Bork was the only child of Harry Bork, a purchasing agent for a steel company, and Elizabeth Bork (née Kunkle), a schoolteacher. After attending secondary school in Ben Avon, a suburb of Pittsburgh, Robert spent one year at the Hotchkiss School, a private preparatory academy in Lakeview, Connecticut, from which he graduated in 1944. He then joined the United States Marine Corps and served briefly in China at the end of World War II. Upon his return to civilian life, he entered the University of Chicago, where he earned a bachelor’s degree in 1948 and a law degree in 1953 after again serving in the Marine Corps, this time as an officer during the Korean War. At the University of Chicago, Bork met Claire Davidson, a fellow undergraduate, whom he married in 1952.

After graduating from law school, Bork worked for eight years as an antitrust attorney in the prestigious Chicago-based law firm Kirkland & Ellis. In 1962 he joined the faculty of Yale Law School, where he taught antitrust law and became a noted advocate of the doctrine of originalism (also known as original intent or original understanding), according to which courts should limit their interpretation of the U.S. Constitution to reflect the meaning that its framers intended it to have at the time of its adoption. Soon after his arrival at Yale, Bork also became known for his opposition to proposed federal legislation, later adopted as Title II of the Civil Rights Act of 1964, which prohibited racial segregation or discrimination in places of public accommodation (such as restaurants and hotels) involved in interstate commerce. At the time, Bork viewed the relevant provisions of the act as an unconstitutional infringement of the right to freedom of association. He also famously argued against the notion that the right to privacy is implicit in certain provisions of the Constitution. On that basis, he criticized the Supreme Court’s decisions in Griswold v. State of Connecticut (1965), which found that the right to privacy was violated by a state law that prevented married couples from using contraceptives, and in Roe v. Wade (1973), which held that the right to privacy guaranteed limited access to abortion to individual women. In addition, Bork advanced an unusual position on the scope of the First Amendment’s right to freedom of speech, declaring in a journal article that, in light of the framers’ original intent, only explicitly “political” speech is constitutionally protected. Bork eventually became one of the country’s most prominent critics of liberal jurisprudence, or judicial rulings in support of liberal priorities such as racial desegregation, voting rights, and women’s rights, which he characterized as involving egregious and willfully wrongheaded readings of the Constitution by unabashed judicial activists.

Bork’s conservative jurisprudence attracted the attention of Republican Pres. Richard Nixon, who appointed him solicitor general (the governing administration’s chief legal representative before the Supreme Court) in 1973. Later that year, in a series of events that came to be known as the “Saturday Night Massacre,” U.S. Attorney General Elliot Richardson and Deputy Attorney General William D. Ruckelshaus both resigned their posts rather than carry out Nixon’s order to fire Archibald Cox, the special prosecutor appointed to investigate the Watergate scandal—whereupon Bork, in his capacity as solicitor general, carried out Nixon’s order by dismissing Cox. A federal district court subsequently ruled that Cox’s firing was illegal.

In 1977, after Democrat Jimmy Carter was elected president, Bork returned to teaching at Yale, but he resigned in 1981 to reenter private practice. The next year, Reagan appointed him to the U.S. Court of Appeals for the District of Columbia Circuit.

In 1987 Reagan nominated Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell, Jr., a political centrist who took moderate-to-liberal stances on issues such as abortion, separation of church and state, and civil rights. Bork’s nomination alarmed Democratic members of Congress and inspired an array of liberal interest groups to mount a mass-media campaign against his appointment. Immediately after Reagan’s announcement, Democratic Sen. Ted Kennedy condemned Bork in a speech on the Senate floor. “Robert Bork’s America,” he declared,

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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, schoolchildren 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.

In hearings before the Senate Judiciary Committee, chaired by Democratic Sen. Joe Biden, in July 1987, Bork faced hostile questioning from Democratic members who feared that Bork would work with other conservative Supreme Court justices to eliminate the right to abortion, put an end to affirmative action, and undermine hard-fought legislative protections of civil rights. Some moderate Republicans on the committee were also skeptical of some of Bork’s positions on constitutional law. During the hearings, Bork responded to some questions in ways that struck some observers as stern, arrogant, or unfeeling. (For example, when asked why he wished to serve on the Supreme Court, Bork replied that “it would be an intellectual feast.”) His demeanour thus aided Democrats in their efforts to portray Bork as a heartless right-wing extremist. The committee voted (9–5) not to recommend Bork’s nomination, and in October the full Senate declined to confirm him by a vote of 58 to 42. Reagan later nominated Anthony M. Kennedy, who was unanimously (97–0) confirmed in 1988.

Following his failed Supreme Court bid, Bork retired as a circuit judge in 1988 and became a popular public speaker and author who dwelt on the theme of America’s liberal-led moral and political decline. His several books include The Tempting of America: The Political Seduction of the Law (1990), Slouching Towards Gomorrah: Modern Liberalism and American Decline (1996), and Coercing Virtue: The Worldwide Rule of Judges (2003). Bork also served as a senior judicial adviser to Republican presidential candidate Mitt Romney in 2012.