Bork, Robert

From New World Encyclopedia
 
(76 intermediate revisions by 2 users not shown)
Line 1: Line 1:
 +
{{Images OK}}{{Submitted}}{{Approved}}{{Copyedited}}
 
{{epname|Bork, Robert}}
 
{{epname|Bork, Robert}}
 
{{Infobox officeholder
 
{{Infobox officeholder
 
| name = Robert Bork
 
| name = Robert Bork
 
| image = Robert Bork.jpg
 
| image = Robert Bork.jpg
−
| office = Judge of the [[United States Court of Appeals for the District of Columbia Circuit]]
+
|order = Judge of the [[United States Court of Appeals for the District of Columbia Circuit]]
 
| term_start = February 9, 1982
 
| term_start = February 9, 1982
 
| term_end = February 5, 1988
 
| term_end = February 5, 1988
−
| appointer = [[Ronald Reagan]]
+
| president = [[Ronald Reagan]]
 
| predecessor = [[Carl E. McGowan]]
 
| predecessor = [[Carl E. McGowan]]
 
| successor = [[Clarence Thomas]]
 
| successor = [[Clarence Thomas]]
−
| office1 = [[United States Attorney General]]<br />{{small|Acting}}
+
| order2 = [[United States Attorney General]]<br />{{small|Acting}}
−
| term_start1 = October 20, 1973
+
| term_start2 = October 20, 1973
−
| term_end1 = January 4, 1974
+
| term_end2 = January 4, 1974
−
| president1 = [[Richard Nixon]]
+
| president2 = [[Richard Nixon]]
−
| predecessor1 = [[Elliot Richardson]]
+
| predecessor2 = [[Elliot Richardson]]
−
| successor1 = [[William B. Saxbe]]
+
| successor2 = [[William B. Saxbe]]
−
| office2 = 35th [[Solicitor General of the United States]]
+
| order3 = 35th [[Solicitor General of the United States]]
−
| term_start2 = March 21, 1973
+
| term_start3 = March 21, 1973
−
| term_end2 = January 20, 1977
+
| term_end3 = January 20, 1977
−
| president2 = [[Richard Nixon]]<br />[[Gerald Ford]]
+
| president3 = [[Richard Nixon]]<br />[[Gerald Ford]]
−
| predecessor2 = [[Erwin Griswold]]
+
| predecessor3 = [[Erwin Griswold]]
−
| successor2 = [[Wade H. McCree]]
+
| successor3 = [[Wade H. McCree]]
 
| birth_name = Robert Heron Bork
 
| birth_name = Robert Heron Bork
 
| birth_date = {{Birth date|1927|03|01|}}
 
| birth_date = {{Birth date|1927|03|01|}}
Line 33: Line 34:
 
}}
 
}}
  
−
'''Robert Heron Bork''' (March 1, 1927 – December 19, 2012) was an American judge, government official and legal scholar who served as the [[Solicitor General of the United States]] from 1973 to 1977. A professor at [[Yale Law School]] by occupation, he later served as a judge on the influential [[United States Court of Appeals for the District of Columbia Circuit|U.S. Court of Appeals for the D.C. Circuit]] from 1982 to 1988. In 1987, President [[Ronald Reagan]] [[Robert Bork Supreme Court nomination|nominated Bork]] to the [[Supreme Court of the United States|U.S. Supreme Court]], but the [[United States Senate|U.S. Senate]] rejected his nomination.<ref>{{cite web |work=[[National Review]] |accessdate=April 6, 2017 |title=Robert Bork: America's Best |first=Mona |last=Charen |authorlink=Mona Charen |date=December 21, 2012 |url=http://amp.nationalreview.com/article/336233/robert-bork-americas-best-mona-charen}}</ref>
+
'''Robert Heron Bork''' (March 1, 1927 – December 19, 2012) was an American judge, government official, and legal scholar who served as the [[Solicitor General of the United States]] from 1973 to 1977. A professor at [[Yale Law School]] by occupation, he later served as a judge on the influential [[United States Court of Appeals for the District of Columbia Circuit|U.S. Court of Appeals for the D.C. Circuit]] from 1982 to 1988. In 1987, President [[Ronald Reagan]] [[Robert Bork Supreme Court nomination|nominated Bork]] to the [[Supreme Court of the United States|U.S. Supreme Court]], but the [[United States Senate|U.S. Senate]] rejected his nomination.
 +
{{toc}}
 +
The contentious confirmation battle that led to the Senate rejecting Bork's nomination revealed a bitter partisan climate that valued political affiliation and beliefs over the ability and experience to serve as a Supreme Court justice. Attacks that were filled with inaccuracies, such as that by Senator [[Ted Kennedy]] at the hearings, have had long-lasting consequences. Despite being recognized as one of the most influential legal scholars of the late twentieth century, Bork's legacy includes the use of his name as the verb "to bork," referring to the obstruction of a person being able to take office through systematically defaming or vilifying them.  
  
 +
== Life ==
 +
Bork was born in [[Pittsburgh]], Pennsylvania. His father was Harry Philip Bork Jr. (1897–1974), a steel company purchasing agent, and his mother was Elisabeth (''née'' Kunkle; 1898–2004), a schoolteacher. His father was of German and Irish ancestry, while his mother was of [[Pennsylvania Dutch]] (German) descent.<ref>''The Americana Annual, 1988'' (Grolier, 1989, ISBN 978-0717202195). </ref>
  
 +
Bork attended the [[Hotchkiss School]] in [[Lakeville, Connecticut]],<ref>Ethan Bronner, ''Battle for Justice: How the Bork Nomination Shook America'' (W W Norton & Co Inc, 1989, ISBN 978-0393026900).</ref> and earned B.A. and [[Juris Doctor|J.D.]] degrees from the [[University of Chicago]]. While pursuing his bachelor's degree he became a brother of the international social fraternity of [[Phi Gamma Delta]]. While in law school, he served on the ''[[University of Chicago Law Review]]''.
  
−
== Life ==
+
He married Claire Davidson in 1952. They had a daughter, [[Ellen Bork|Ellen]], and two sons, Robert and Charles.  
−
Bork was born in [[Pittsburgh]], Pennsylvania. His father was Harry Philip Bork Jr. (1897–1974), a steel company purchasing agent, and his mother was Elisabeth (''née'' Kunkle; 1898–2004), a schoolteacher.<ref>{{cite news| url=https://www.nytimes.com/2004/01/18/classified/paid-notice-deaths-bork-elizabeth-kunkle.html | archiveurl=https://web.archive.org/web/20130524073815/http://www.nytimes.com/2004/01/18/classified/paid-notice-deaths-bork-elizabeth-kunkle.html | archivedate=May 24, 2013 | work=The New York Times | title=Paid Notice: Deaths Bork, Elizabeth Kunkle | date=January 18, 2004}}</ref> His father was of German and Irish ancestry, while his mother was of [[Pennsylvania Dutch]] (German) descent.<ref>{{cite book|url=https://books.google.com/books?id=irMcAAAAMAAJ&q=%22father,+half+German+and+half+Irish,+was+a+steel-mill%22&dq=%22father,+half+German+and+half+Irish,+was+a+steel-mill%22 |title=The Americana Annual, 1988: An Encyclopedia of the Events of 1987; Yearbook ... |date=February 1, 1989 |accessdate=December 20, 2012|isbn=9780717202195 |last1=McDannald |first1=Alexander Hopkins }}</ref> He was married to Claire Davidson from 1952 until 1980, when she died of [[cancer]]. They had a daughter, [[Ellen Bork|Ellen]], and two sons, Robert and Charles. In 1982, he married Mary Ellen Pohl,<ref>{{harvnb|Vile|2003|p=111}}</ref> a Catholic [[nun|religious sister]] turned activist.<ref name="Long and Winding Odyssey">{{cite news|url=http://www.time.com/time/printout/0,8816,965540,00.html|title=A Long and Winding Odyssey|last=Beckwith|first=David|date=September 21, 1987|work=Time|accessdate=March 20, 2009}}</ref>
 
  
−
Bork attended the [[Hotchkiss School]] in [[Lakeville, Connecticut]],<ref>{{harvnb|Bronner|2007|p=43}}</ref> and earned B.A. and [[Juris Doctor|J.D.]] degrees from the [[University of Chicago]]. While pursuing his bachelor's degree he became a brother of the international social fraternity of [[Phi Gamma Delta]]. While in law school, he served on the ''[[University of Chicago Law Review]]''. At Chicago he was awarded a [[Phi Beta Kappa]] key with his J.D. degree in 1953, and [[Admission to practice law|passed the bar]] in Illinois that same year. After a period of service in the [[United States Marine Corps]], Bork began as a lawyer in private practice in 1954 at [[Kirkland & Ellis]]<ref>{{cite news|title=A Conservative Whose Supreme Court Bid Set the Senate Afire| url=https://www.nytimes.com/2012/12/20/us/robert-h-bork-conservative-jurist-dies-at-85.html}}</ref> in Chicago, and then was a professor at [[Yale Law School]] from 1962 to 1975, and again from 1977 to 1981. Among his students during this time were [[Bill Clinton]], [[Hillary Clinton]], [[Anita Hill]], [[Robert Reich]], [[Jerry Brown]], [[John R. Bolton]], [[Samuel Issacharoff]], and [[Cynthia Estlund]].<ref>{{cite web|title=Special Counsel Investigation|url=http://www.c-spanvideo.org/program/109864-1|work=Washington Journal|publisher=C-SPAN|date=August 11, 1998}}</ref><ref>{{cite web|last=Frey |first=Jennifer |url=http://blogs.law.nyu.edu/magazine/uncategorized/samuel-issacharoff |title=Introducing Samuel Issacharoff |publisher=The Law School Magazine |year=2005 |accessdate=December 20, 2012 |archiveurl=https://web.archive.org/web/20110501031026/http://blogs.law.nyu.edu/magazine/uncategorized/samuel-issacharoff |archivedate=May 1, 2011 |url-status=live}}</ref>
+
At Chicago he was awarded a [[Phi Beta Kappa]] key with his J.D. degree in 1953, and [[Admission to practice law|passed the bar]] in Illinois that same year. After a period of service in the [[United States Marine Corps]], Bork began as a lawyer in private practice in 1954 at [[Kirkland & Ellis]]<ref>Ethan Bronner, [https://www.nytimes.com/2012/12/20/us/robert-h-bork-conservative-jurist-dies-at-85.html A Conservative Whose Supreme Court Bid Set the Senate Afire] ''The New York Times'', December 20, 2012. Retrieved October 15, 2020.</ref> in Chicago, and then took a position at [[Yale Law School]] in 1962. He served as Solicitor-General from 1972 until 1977, when he returned to Yale.  
  
−
Bork pursued a legal career after attending the [[University of Chicago]].  
+
In 1980, his wife Claire died of [[cancer]]. In 1982, Bork married Mary Ellen Pohl,<ref>John R. Vile, ''Great American Judges'' (ABC-CLIO, 2003, ISBN 978-1576079898).</ref> a Catholic [[nun|religious sister]] turned activist.<ref>David Beckwith, [http://content.time.com/time/magazine/article/0,9171,965540,00.html A Long and Winding Odyssey] ''TIME'', September 21, 1987. Retrieved October 15, 2020.</ref>
−
He became a prominent advocate of [[originalism]], calling for judges to hew to the framers' original understanding of the [[United States Constitution]]. He also became an influential [[antitrust]] scholar, arguing that consumers often benefited from [[corporate merger]]s and that [[United States antitrust law|antitrust law]] should focus on [[consumer welfare]] rather than on ensuring competition. Bork wrote several notable books, including ''[[The Antitrust Paradox]]'' and ''[[Slouching Towards Gomorrah]]''. He was a fellow at the [[American Enterprise Institute]] and the [[Hudson Institute]] until his death in 2012.
 
  
 +
In 1982 Bork was appointed to the US Court of Appeals, and in 1987 President [[Ronald Reagan]] nominated him to fill a vacancy on the [[US Supreme Court]]. The Senate rejected his nomination, and Bork resigned his judgeship to return to teaching the law.
  
 +
Bork wrote several books, including the two best-sellers ''[[The Tempting of America]]'', about his judicial philosophy and his nomination battle, and ''[[Slouching Towards Gomorrah|Slouching Towards Gomorrah: Modern Liberalism and American Decline]]'', in which he argued that the rise of the [[New Left]] in the 1960s in the U.S. undermined the [[morality |moral]] standards necessary for [[civil society]], and spawned a generation of [[intellectual]]s who oppose [[Western civilization]]. During the period these books were written, as well as most of his adult life, Bork was an agnostic. He converted to [[Catholic Church|Catholicism]] in 2003.<ref name=NCR>Sophia Mason, [https://www.ncregister.com/news/judge-robert-bork-conservative-icon-and-catholic-convert-r-i-p Judge Robert Bork, Conservative Icon and Catholic Convert, R.I.P.] ''National Catholic Register'', December 20, 2012. Retrieved October 15, 2020.</ref>
  
−
Bork died of complications from heart disease at the Virginia Hospital Center in [[Arlington, Virginia]], on December 19, 2012.<ref name=obit>{{cite news |author=Ethan Bronner |title=Robert H. Bork, Conservative Jurist, Dies at 85 |url=https://www.nytimes.com/2012/12/20/us/robert-h-bork-conservative-jurist-dies-at-85.html?hp&_r=0 |quote=Robert H. Bork, a former solicitor general, federal judge and conservative legal theorist whose 1987 nomination to the United States Supreme Court was 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. |newspaper=[[The New York Times]] |date=December 19, 2012 |accessdate=December 17, 2012 |author-link=Ethan Bronner }}</ref><ref name=washpost>{{cite news| url=https://www.washingtonpost.com/local/obituaries/judge-robert-h-bork-conservative-icon/2012/12/19/49453de4-c5da-11df-94e1-c5afa35a9e59_story.html | work=The Washington Post | title=Judge Robert H. Bork, conservative icon, dies at 85 | date=December 19, 2012}}</ref><ref>{{cite web|last=Memmott |first=Mark |url=https://www.npr.org/blogs/thetwo-way/2012/12/19/167614048/family-robert-bork-who-was-turned-down-for-supreme-court-dies |title=Robert Bork, Who Was Turned Down For Supreme Court, Dies |publisher=NPR |date=December 19, 2012 |accessdate=December 20, 2012}}</ref> Following his death, Scalia referred to Bork as "one of the most influential legal scholars of the past 50 years" and "a good man and a loyal citizen". [[Mike Lee (U.S. politician)|Mike Lee]], senator from Utah, called Bork "one of America's greatest jurists and a brilliant legal mind".<ref>{{cite news|last=Mears |first=Bill |url=http://www.cnn.com/2012/12/19/politics/robert-bork-dead/index.html |title=Robert Bork, known for contentious Supreme Court nomination, dies at 85 |publisher=CNN |date=December 19, 2012 |accessdate=December 20, 2012}}</ref> He is interred at [[Fairfax Memorial Park]].
+
Bork died of complications from heart disease at the Virginia Hospital Center in [[Arlington, Virginia]], on December 19, 2012.<ref>Ethan Bronner, [https://www.nytimes.com/2012/12/20/us/robert-h-bork-conservative-jurist-dies-at-85.html?hp&_r=0 A Conservative Whose Supreme Court Bid Set the Senate Afire] ''The New York Times'', December 19, 2012. Retrieved October 15, 2020.</ref><ref name=washpost>Al Kamen and Matt Schudel, [https://www.washingtonpost.com/local/obituaries/judge-robert-h-bork-conservative-icon/2012/12/19/49453de4-c5da-11df-94e1-c5afa35a9e59_story.html Judge Robert H. Bork, conservative icon, dies at 85] ''The Washington Post'', December 19, 2012. Retrieved October 15, 2020.</ref> He is interred at [[Fairfax Memorial Park]].
  
 
==Work==
 
==Work==
−
Bork's legal career led him to serve as a judge, government official, and legal scholar. After working at the law firm of [[Kirkland & Ellis]], he served as a Yale Law School Professor.  
+
Bork's legal career led him to serve as a legal professor and scholar, government official, and judge.  
  
 +
=== Legal scholar ===
 +
Bork served as a professor at [[Yale Law School]] from 1962 to 1975, and again from 1977 to 1981. Among his students during this time were [[Bill Clinton]], [[Hillary Clinton]], [[Anita Hill]], [[Robert Reich]], [[Jerry Brown]], [[John R. Bolton]], [[Samuel Issacharoff]], and [[Cynthia Estlund]].<ref>[https://www.c-span.org/video/?109864-1/special-counsel-investigation Special Counsel Investigation] ''C-SPAN'', August 11, 1998. Retrieved October 15, 2020.</ref>
  
−
From 1973 to 1977, he served as Solicitor General under President [[Richard Nixon]] and President [[Gerald Ford]], arguing several cases before the Supreme Court. In the October 1973 [[Saturday Night Massacre]], Bork became acting [[United States Attorney General|U.S. Attorney General]] after his superiors in the [[United States Department of Justice|U.S. Justice Department]] resigned rather than fire [[Special Prosecutor]] [[Archibald Cox]], who was investigating the [[Watergate scandal]]. Following an order from the President, Bork fired Cox, his first assignment as Acting Attorney General. Bork served as Acting Attorney General until January 4, 1974 and was succeeded by [[List of United States senators from Ohio|Ohio U.S. Senator]] [[William B. Saxbe]].<ref>{{cite article|title=Bork: Nixon Offered Next High Court Vacancy in '73|date=February 25, 2013|website=[[Yahoo! News]]|publisher=[[Verizon Media]]|url=https://news.yahoo.com/bork-nixon-offered-next-high-court-vacancy-73-215747517.html}}</ref>
+
Bork became a prominent advocate of [[originalism]], calling for judges to adhere to the framers' original understanding of the [[United States Constitution]]. His 1971 article, "Neutral Principles and Some First Amendment Problems," published in the ''Indiana Law Journal''<ref>Robert Bork, [https://www.repository.law.indiana.edu/ilj/vol47/iss1/1 Neutral Principles and Some First Amendment Problems] ''Indiana Law Journal'' 47(1) (1971). Retrieved October 15, 2020.</ref> championed the view that justices should declare laws unconstitutional only when elected officials had clearly acted in defiance of the original understanding or original meaning of constitutional language, in other words a position designed to limit judicial power.<ref>Mark A. Graber, [https://www.baltimoresun.com/opinion/op-ed/bs-ed-bork-20121221-story.html Robert Bork, the original originalist] ''Baltimore Sun'', December 24, 2012. Retrieved October 15, 2020.</ref>
  
−
In 1982, President Reagan appointed Bork to the Court of Appeals for the District of Columbia Circuit. After Supreme Court Justice [[Lewis F. Powell Jr.|Lewis Powell]] announced his impending retirement, Reagan nominated Bork to the Supreme Court in 1987, precipitating a contested Senate debate. Opposition to Bork centered on his stated desire to roll back the civil rights decisions of the [[Warren Court|Warren]] and [[Burger Court|Burger]] courts and his role in the Saturday Night Massacre. His nomination was defeated in the Senate, with 58 of the 100 Senators opposing his nomination. That Supreme Court vacancy was eventually filled by another Reagan nominee, [[Anthony Kennedy]]. Bork resigned his judgeship in 1988 and served as a professor at the [[Antonin Scalia Law School|George Mason University School of Law]] and other institutions.
+
He also became an influential [[antitrust]] scholar. In his book, ''[[The Antitrust Paradox]]'', he argued that [[consumer]]s often benefited from corporate mergers, and that many then-current readings of the [[antitrust law]]s were economically irrational and hurt consumers. He posited that the primary focus of antitrust laws should be on consumer welfare rather than ensuring competition, as fostering competition of companies within an industry has a natural built-in tendency to allow, and even help, many poorly run companies with methodologies and practices that are both inefficient and expensive to continue in business simply for the sake of competition, to the detriment of both consumers and society. Bork's writings on antitrust law—together with those of [[Richard Posner]] and other [[Chicago School (economics)|Chicago School]] thinkers—were influential in causing a shift in the Supreme Court's approach to antitrust laws.<ref>Peter M. Gerhart, [https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1601&context=faculty_publications The Supreme Court and Antitrust Analysis: The (Near) Triumph of the Chicago School] ''The University of Chicago Faculty Publications'' 602 (1983): 319–349. Retrieved October 15, 2020.</ref>
  
−
== Antitrust scholar ==
+
=== Solicitor General ===
−
At Yale he was best known for writing ''[[The Antitrust Paradox]]'', a book in which he argued that [[consumer]]s often benefited from corporate mergers, and that many then-current readings of the [[antitrust]] laws were economically irrational and hurt consumers. He posited that the primary focus of antitrust laws should be on consumer welfare rather than ensuring competition, as fostering competition of companies within an industry has a natural built-in tendency to allow, and even help, many poorly run companies with methodologies and practices that are both inefficient and expensive to continue in business simply for the sake of competition, to the detriment of both consumers and society. Bork's writings on antitrust law—with those of [[Richard Posner]] and other [[law and economics]] and [[Chicago School (economics)|Chicago School]] thinkers—were influential in causing a shift in the Supreme Court's approach to antitrust laws since the 1970s.<ref>{{Cite journal |last=Gerhart |first=Peter M. |year=1982 |title=The Supreme Court and Antitrust Analysis: The (Near) Triumph of the Chicago School |journal=The Supreme Court Review |volume=1982 |pages=319–349 |jstor=3109560 |ref=harv |url=http://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=1601&context=faculty_publications |doi=10.1086/scr.1982.3109560 }}</ref><ref>{{Cite journal |last=Fox |first=Eleanor M. |year=1987 |title=The Battle for the Soul of Antitrust |journal=[[California Law Review]] |volume=75 |issue=3 |pages=917–923 |doi=10.2307/3480656 |ref=harv |jstor=3480656 }}</ref>
+
From 1973 to 1977, Bork served as Solicitor General in the [[United States Department of Justice|U.S. Department of Justice]] under President [[Richard Nixon]] and President [[Gerald Ford]].<ref>James T. Wooten [https://www.nytimes.com/1973/03/21/archives/nixons-men-all-work-and-no-frills-presidents-men-all-work-and-no.html Nixon's Men: All Work and No Fills] ''The New York Times'', March 21, 1973. Retrieved October 16, 2020.</ref>
 +
[[File:Ford A5022 NLGRF photo contact sheet (1975-06-12)(Gerald Ford Library) (cropped).jpg|thumb|right|250px|Bork greeting [[President of the United States|President]] [[Gerald Ford]] in 1975]]
 +
As solicitor general, he argued several high-profile cases before the Supreme Court in the 1970s, including 1974's ''[[Milliken v. Bradley]]'', where his brief in support of the [[State of Michigan]] was influential among the justices. Chief Justice [[Warren Burger]] called Bork the most effective counsel to appear before the court during his tenure. Bork hired many young attorneys as assistants who went on to have successful careers, including judges [[Danny Boggs]] and [[Frank H. Easterbrook]] as well as [[Robert Reich]], later [[United States Secretary of Labor|secretary of labor]] in the [[Bill Clinton|Clinton]] administration.
  
−
== Solicitor General ==
+
==== "Saturday Night Massacre" ====
−
[[File:Ford A5022 NLGRF photo contact sheet (1975-06-12)(Gerald Ford Library) (cropped).jpg|thumb|right|Bork greeting [[President of the United States|President]] [[Gerald Ford]] in 1975]]
+
On October 20, 1973, Bork was instrumental in the "[[Saturday Night Massacre]]" when President [[Richard Nixon]] ordered the firing of [[Watergate scandal|Watergate]] [[Special Prosecutor]] [[Archibald Cox]] following Cox's request for tapes of his [[Oval Office]] conversations. Nixon initially ordered [[U.S. Attorney General]] [[Elliot Richardson]] to fire Cox. Richardson resigned rather than carry out the order. Richardson's top deputy, [[United States Deputy Attorney General|Deputy Attorney General]] [[William Ruckelshaus]], also considered the order "fundamentally wrong"<ref name=Noble>Kenneth B. Noble, [https://www.nytimes.com/1987/07/26/us/new-views-emerge-of-bork-s-role-in-watergate-dismissals.html New Views Emerge of Bork's Role in Watergate Dismissals] ''The New York Times'', July 26, 1987. Retrieved October 16, 2020.</ref> and resigned, making Bork acting attorney general. When Nixon reiterated his order, Bork complied and fired Cox.  
−
Bork served as [[Solicitor General of the United States|solicitor general]] in the [[United States Department of Justice|U.S. Department of Justice]] from March 1973<ref>[https://www.nytimes.com/1973/03/21/archives/nixons-men-all-work-and-no-frills-presidents-men-all-work-and-no.html "Nixon's Men: All Work and No Frills; President's Men: All Work and No Frills"], ''[[The New York Times]]''. March 21, 1973.</ref> until 1977. As solicitor general, he argued several high-profile cases before the Supreme Court in the 1970s, including 1974's ''[[Milliken v. Bradley]]'', where his brief in support of the [[State of Michigan]] was influential among the justices. Chief Justice [[Warren Burger]] called Bork the most effective counsel to appear before the court during his tenure. Bork hired many young attorneys as assistants who went on to have successful careers, including judges [[Danny Boggs]] and [[Frank H. Easterbrook]] as well as [[Robert Reich]], later [[United States Secretary of Labor|secretary of labor]] in the Clinton administration.
 
  
−
=== "Saturday Night Massacre" ===
+
Bork claimed he carried out the order under pressure from Nixon's attorneys and intended to resign immediately afterward, but was persuaded by Richardson and Ruckelshaus to stay on for the good of the Justice Department.<ref name = Nixon>[https://www.politico.com/story/2013/02/bork-nixon-offered-next-high-court-vacancy-in-73-088086 Bork: Nixon offered next high court vacancy in '73] ''Associated Press'', February 26, 2013. Retrieved October 16, 2020.</ref> Bork remained acting attorney general until the appointment of [[William B. Saxbe]] on January 4, 1974.<ref>[https://www.justice.gov/ag/bio/saxbe-william-bart William Bart Saxbe] ''The United States Department of Justice''. Retrieved October 16, 2020. </ref> In his posthumously published memoirs, Bork claimed that after he carried out the order, Nixon promised him the next seat on the Supreme Court, though Bork didn't take the offer seriously as he believed that Watergate had left Nixon too politically compromised to appoint another justice.<ref name = Nixon/> Nixon would never get the chance to carry out his promise to Bork, as the next Supreme Court vacancy came after [[Resignation of Richard Nixon|Nixon resigned]] and [[Gerald Ford]] [[Inauguration of Gerald Ford|assumed the presidency]], with Ford instead nominating [[John Paul Stevens]] following the 1975 retirement of [[William O. Douglas]].
−
On October 20, 1973, Solicitor General Bork was instrumental in the '[[Saturday Night Massacre]]' when President [[Richard Nixon]] ordered the firing of [[Watergate scandal|Watergate]] [[Special Prosecutor]] [[Archibald Cox]] following Cox's request for tapes of his [[Oval Office]] conversations. Nixon initially ordered [[U.S. Attorney General]] [[Elliot Richardson]] to fire Cox. Richardson resigned rather than carry out the order. Richardson's top deputy, [[United States Deputy Attorney General|Deputy Attorney General]] [[William Ruckelshaus]], also considered the order "fundamentally wrong"<ref name="query.nytimes.com">{{cite news |url=https://query.nytimes.com/gst/fullpage.html?res=9B0DE2DE163FF935A15754C0A961948260&sec=&spon=&pagewanted=print |archiveurl=https://web.archive.org/web/20150524213506/http://www.nytimes.com/1987/07/26/us/new-views-emerge-of-bork-s-role-in-watergate-dismissals.html |archivedate=May 24, 2015 |url-status=live |title=New Views Emerge of Bork's Role in Watergate Dismissals |work=[[The New York Times]] |date=July 26, 1987 |accessdate=June 4, 2012|authorlink=Kenneth B. Noble |first=Kenneth B. |last=Noble}}</ref> and resigned, making Bork acting attorney general. When Nixon reiterated his order, Bork complied and fired Cox. Bork claimed he carried out the order under pressure from Nixon's attorneys and intended to resign immediately afterward, but was persuaded by Richardson and Ruckelshaus to stay on for the good of the Justice Department.<ref name = "Yahoo" /> Bork remained acting attorney general until the appointment of [[William B. Saxbe]] on January 4, 1974.<ref>{{cite web|url=http://www.justice.gov/ag/aghistpage.php?id=69 |title=William Bart Saxbe |publisher=The United States Department of Justice |archiveurl=https://web.archive.org/web/20100407080247/http://www.justice.gov/ag/aghistpage.php?id=69 |archivedate=April 7, 2010}}</ref> In his posthumously published memoirs, Bork claimed that after he carried out the order, Nixon promised him the next seat on the Supreme Court,<ref name = "Yahoo">{{cite news|url=https://news.yahoo.com/bork-nixon-offered-next-high-court-vacancy-73-215747517.html |title=Bork: Nixon Offered Next High Court Vacancy in '73 |date=February 25, 2013 |work=Yahoo News |agency=[[ABC News]] |archiveurl=https://web.archive.org/web/20130301231021/http://news.yahoo.com/bork-nixon-offered-next-high-court-vacancy-73-215747517.html |archivedate=March 1, 2013 |url-status=live}}</ref> though Bork didn't take the offer seriously as he believed that Watergate had left Nixon too politically compromised to appoint another justice. Nixon would never get the chance to carry out his promise to Bork, as the next Supreme Court vacancy came after [[Resignation of Richard Nixon|Nixon resigned]] and [[Gerald Ford]] [[Inauguration of Gerald Ford|assumed the presidency]], with Ford instead nominating [[John Paul Stevens]] following the 1975 retirement of [[William O. Douglas]].
 
  
−
== United States Circuit Judge ==
+
===Judge===
−
Bork was a circuit judge for the [[United States Court of Appeals for the District of Columbia Circuit]] from 1982 to 1988. He was nominated by President Reagan on December 7, 1981, was confirmed with a unanimous consent voice vote by the Senate on February 8, 1982,<ref>{{cite web |url=https://www.congress.gov/nomination/97th-congress/891 |title= PN891 – Robert H. Bork – The Judiciary |accessdate=February 15, 2016|year= 1982 }}</ref> and received his commission on February 9, 1982.
 
  
−
One of his opinions while on the D.C. Circuit was ''Dronenburg v. Zech'', 741 F.2d 1388,<ref name="Dronenburg">{{cite court |litigants=DRONENBURG v. ZECH |vol=741 |reporter=F.2d |opinion=1388 |court=D.C. Cir. |date=August 17, 1984 |url=http://openjurist.org/741/f2d/1388/dronenburg-v-zech |accessdate=March 2, 2016}}</ref> decided in 1984. This case involved James L. Dronenburg, a sailor who had been administratively discharged from the navy for engaging in homosexual conduct. Dronenburg argued that his discharge violated his right to privacy. This argument was rejected in an opinion written by Bork and joined by [[Antonin Scalia]], in which Bork critiqued the line of Supreme Court cases upholding a right to privacy.<ref name="Dronenburg"/>
+
==== United States Circuit Judge ====
 +
Bork was a circuit judge for the [[United States Court of Appeals for the District of Columbia Circuit]] from 1982 to 1988. He was nominated by President Reagan on December 7, 1981, and was confirmed with a unanimous consent voice vote by the Senate on February 8, 1982.<ref>[https://www.congress.gov/nomination/97th-congress/891 PN891 — Robert H. Bork — The Judiciary] ''Congress.gov''. Retrieved October 16, 2020.</ref>  
  
−
In rejecting Dronenburg's suggestion for a rehearing ''[[en banc]]'', the D.C. Circuit issued four separate opinions, including one by Bork (again joined by Scalia), who wrote that "no principle had been articulated [by the Supreme Court] that enabled us to determine whether appellant's case fell within or without that principle."<ref name="Dronenburg en banc">{{cite court |litigants=DRONENBURG v. ZECH |vol=746 |reporter=F.2d |opinion=1579 |court=D.C. Cir. |date=November 15, 1984 |url=http://openjurist.org/746/f2d/1579/dronenburg-v-zech |accessdate=March 2, 2016}}</ref>
+
One of his opinions while on the D.C. Circuit was ''Dronenburg v. Zech'', 741 F.2d 1388, decided in 1984. This case involved James L. Dronenburg, a sailor who had been administratively discharged from the navy for engaging in homosexual conduct. Dronenburg argued that his discharge violated his right to privacy. This argument was rejected in an opinion written by Bork and joined by [[Antonin Scalia]], in which Bork critiqued the line of Supreme Court cases upholding a right to privacy.<ref>[https://openjurist.org/741/f2d/1388/dronenburg-v-zech 741 F. 2d 1388 - Dronenburg v. Zech] ''United States Court of Appeals, District of Columbia Circuit'', August 17, 1984. Retrieved October 16, 2020.</ref>
  
−
In 1986 President Reagan considered nominating Bork to the Supreme Court after Chief Justice Burger retired. Reagan ultimately chose Rehnquist for chief justice and Bork's D.C. Circuit colleague, Judge Antonin Scalia, as a new associate justice.
+
In rejecting Dronenburg's suggestion for a rehearing ''[[en banc]]'', the D.C. Circuit issued four separate opinions, including one by Bork (again joined by Scalia), who wrote that "no principle had been articulated [by the Supreme Court] that enabled us to determine whether appellant's case fell within or without that principle."<ref>[https://openjurist.org/746/f2d/1579/dronenburg-v-zech 746 F. 2d 1579 - Dronenburg v. Zech] ''United States Court of Appeals, District of Columbia Circuit'', November 15, 1984. Retrieved October 16, 2020.</ref>
  
−
== U.S. Supreme Court nomination ==
+
In 1986 President [[Ronald Reagan|Reagan]] considered nominating Bork to the Supreme Court after Chief Justice Burger retired. Reagan ultimately chose Rehnquist for chief justice and Bork's D.C. Circuit colleague, Judge [[Antonin Scalia]], as a new associate justice.
−
{{Main|Robert Bork Supreme Court nomination}}
 
−
[[Image:President Ronald Reagan and Robert Bork.jpg|thumb|upright|Bork (right) with President [[Ronald Reagan]], 1987]]
 
  
−
President Reagan nominated Bork for associate justice of the Supreme Court on July 1, 1987, to replace retiring Associate Justice [[Lewis F. Powell Jr.|Lewis Powell]]. A hotly contested [[United States Senate]] debate over Bork's nomination ensued. Opposition was partly fueled by civil rights and women's rights groups, concerned about Bork's opposition to the authority claimed by the federal government to impose standards of voting fairness upon states (at his confirmation hearings for the position of solicitor general, he supported the rights of Southern states to impose a poll tax),<ref>{{cite news|last=Buchanan |first=John H. |last2=Kropp |first2=Arthur J. |url=https://www.nytimes.com/1987/10/23/opinion/l-bork-hearings-showed-how-democracy-works-a-very-small-poll-tax-174787.html |title=Bork Hearings Showed How Democracy Works; A Very Small Poll Tax |work=The New York Times |date=October 23, 1987 |accessdate=December 20, 2012}}</ref> and his stated desire to roll back civil rights decisions of the [[Earl Warren|Warren]] and [[Warren Burger|Burger]] courts. Bork is one of only four Supreme Court nominees (along with [[William Rehnquist]], [[Samuel Alito]], and [[Brett Kavanaugh]]) to have been opposed by the [[American Civil Liberties Union]].<ref>{{cite web |url=https://www.aclu.org/scotus/alito/ |title=ACLU Opposes Nomination of Judge Alito  |accessdate=August 17, 2007 |work=American Civil Liberties Union |archiveurl = https://web.archive.org/web/20070406173742/http://www.aclu.org/scotus/alito/ <!-- Bot retrieved archive —> |archivedate = April 6, 2007}}</ref><ref>{{cite web |title = ACLU spending more than $1M to oppose Kavanaugh  |publisher = Politico |url = https://www.politico.com/story/2018/10/01/aclu-kavanaugh-ad-buy-854859 |accessdate = October 1, 2018 }}</ref> Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy,"<ref name="query.nytimes.com"/> most notably, according to critics, for his role in the '[[Saturday Night Massacre]]'.
+
==== U.S. Supreme Court nomination ====
 +
[[Image:President Ronald Reagan and Robert Bork.jpg|thumb|200px|left|Bork (right) with President [[Ronald Reagan]], 1987]]
 +
President Reagan nominated Bork for associate justice of the Supreme Court on July 1, 1987, to replace retiring Associate Justice [[Lewis F. Powell Jr.|Lewis Powell]]. A hotly contested [[United States Senate]] debate over Bork's nomination ensued. Opposition was partly fueled by civil rights and women's rights groups, concerned about Bork's opposition to the authority claimed by the federal government to impose standards of voting fairness upon states (at his confirmation hearings for the position of solicitor general, he supported the rights of Southern states to impose a poll tax),<ref>John H. Buchanan and Arthur J. Kropp, [https://www.nytimes.com/1987/10/23/opinion/l-bork-hearings-showed-how-democracy-works-a-very-small-poll-tax-174787.html Bork Hearings Showed How Democracy Works; A Very Small Poll Tax] ''The New York Times'', October 23, 1987. Retrieved October 16, 2020.</ref> and his stated desire to roll back civil rights decisions of the [[Earl Warren|Warren]] and [[Warren Burger|Burger]] courts. Bork is one of only four Supreme Court nominees (along with [[William Rehnquist]], [[Samuel Alito]], and [[Brett Kavanaugh]]) to have been opposed by the [[American Civil Liberties Union]].<ref>Burgess Everett, [https://www.politico.com/story/2018/10/01/aclu-kavanaugh-ad-buy-854859 ACLU spending more than $1M to oppose Kavanaugh] ''Politico'', October 1, 2018. Retrieved October 16, 2020. </ref> Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy,"<ref name=Noble/> most notably, according to critics, for his role in the "[[Saturday Night Massacre]]."
  
−
Before Supreme Court justice Lewis Powell's expected retirement on June 27, 1987, some Senate Democrats had asked liberal leaders to "form a 'solid phalanx' of opposition" if President [[Ronald Reagan]] nominated an "ideological extremist" to replace him, assuming it would tilt the court rightward.<ref>{{cite news|last=Fuerbringer |first=Jonathan |url=https://www.nytimes.com/1987/06/30/us/byrd-says-bork-nomination-would-face-senate-trouble.html |title=Byrd Says Bork Nomination Would Face Senate Trouble |newspaper=New York Times |date=June 30, 1987 |accessdate=February 14, 2016}}</ref>  Democrats also warned Reagan there would be a fight if Bork were nominated.<ref name=Miranda>{{cite news |title=The Original Borking |author=Manuel Miranda |work=The Wall Street Journal |date=August 24, 2005 |accessdate=August 10, 2007 |url=http://www.opinionjournal.com/nextjustice/?id=110007149 |archiveurl=https://web.archive.org/web/20051028035123/http://www.opinionjournal.com/nextjustice/?id=110007149 |archivedate=October 28, 2005}}</ref> Nevertheless, Reagan nominated Bork for the seat on July 1, 1987.
+
Before Supreme Court justice Lewis Powell's expected retirement on June 27, 1987, some Senate Democrats had asked liberal leaders to "form a 'solid phalanx' of opposition" if President Ronald Reagan nominated an "ideological extremist" to replace him, assuming it would tilt the court rightward. Democrats also warned Reagan there would be a fight if Bork were nominated.<ref>Manuel Miranda, [https://historynewsnetwork.org/article/14643 The Original Borking] ''The Wall Street Journal'', August 24, 2005. Retrieved October 16, 2020.</ref> Nevertheless, Reagan nominated Bork for the seat on July 1, 1987.
  
−
Following Bork's nomination, Sen. [[Ted Kennedy]] took to the Senate floor with a strong condemnation of him, declaring:
+
To pro-choice rights legal groups, Bork's [[originalism|originalist]] views and his belief that the Constitution did not contain a general "right to privacy" were viewed as a clear signal that, should he become a justice of the Supreme Court, he would vote to reverse the Court's 1973 decision in ''[[Roe v. Wade]]''. Accordingly, a large number of groups mobilized to press for Bork's rejection, and the resulting 1987 [[United States Senate|Senate]] confirmation hearings became an intensely partisan battle.
  
−
<blockquote>Robert Bork's America 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 the 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&nbsp;... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.<ref>{{cite web|url=http://eightiesclub.tripod.com/id320.htm |title=34. The Bork Nomination |publisher=Eightiesclub.tripod.com |accessdate=June 20, 2010 |archiveurl=https://web.archive.org/web/20060106063313/http://eightiesclub.tripod.com/id320.htm |archivedate=2006-01-06 |url-status=live}}</ref><ref>{{cite news| url=https://www.nytimes.com/2009/08/27/us/politics/27kennedy.html | work=The New York Times | title=Edward M. Kennedy, Senate Stalwart, Is Dead at 77 | first=John M. | last=Broder | date=August 27, 2009 | accessdate=April 10, 2010 |archiveurl=https://web.archive.org/web/20150105205707/http://www.nytimes.com/2009/08/27/us/politics/27kennedy.html |archivedate=2015-01-05 |url-status=live}}</ref></blockquote>
+
Following Bork's nomination, Senator [[Ted Kennedy]] took to the Senate floor with a strong condemnation of him, declaring:
  
−
Bork responded, "There was not a line in that speech that was accurate."<ref name=econ>{{cite news|title=A hell of a senator|url=http://www.economist.com/world/unitedstates/displaystory.cfm?story_id=14327160|work=The Economist|date=August 29, 2009|archiveurl=https://web.archive.org/web/20090830041146/http://www.economist.com/world/unitedstates/displaystory.cfm?story_id=14327160|archivedate=August 30, 2009}}</ref> In an obituary of Kennedy, ''[[The Economist]]'' remarked that Bork may well have been correct, "but it worked."<ref name=econ/>  Bork also contended in his best-selling<ref name="harper collins">{{cite web |title = Robert H. Bork |publisher = Harper Collins |url = http://www.harpercollins.com/authors/1005/Robert_H_Bork/index.aspx |accessdate = October 26, 2008 }}</ref> book, ''The Tempting of America'', that the brief prepared for Sen. [[Joe Biden]], head of the Senate Judiciary Committee, "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility."<ref name="reason">{{cite news |title=Straight Talk Slowdown |author=Damon W. Root |work=Reason|date=September 9, 2008 |accessdate=October 26, 2008 |url=http://www.reason.com/news/show/128686.html}}</ref> Opponents of Bork's nomination found the arguments against him justified claiming that Bork believed the Civil Rights Act was unconstitutional, and he supported poll taxes, literacy tests for voting, mandated school prayer, and sterilization as a requirement for a job, while opposing free speech rights for non-political speech and privacy rights for gay conduct.<ref>{{cite web|url=https://www.vox.com/2018/9/26/17896126/bork-kavanaugh-supreme-court-conservatives-republicans|title="Borking," explained: why a failed Supreme Court nomination in 1987 matters|publisher=Vox.com|accessdate=July 20, 2019 |archiveurl=https://web.archive.org/web/20190708203536/https://www.vox.com/2018/9/26/17896126/bork-kavanaugh-supreme-court-conservatives-republicans |archivedate=2019-07-08 |url-status=live|date=September 26, 2018}}</ref> However, in 1988, an analysis published in ''[[Political Research Quarterly|The Western Political Quarterly]]'' of ''[[amicus curiae]]'' briefs filed by [[Solicitor General of the United States|U.S. Solicitors General]] during the [[Warren Court|Warren]] and [[Burger Court]]s found that during Bork's tenure in the position during the [[Presidency of Richard Nixon|Nixon]] and [[Presidency of Gerald Ford|Ford Administrations]] (1973–1977), Bork took liberal positions in the aggregate as often as [[Thurgood Marshall]] did during the [[Presidency of Lyndon B. Johnson|Johnson Administration]] (1965–1967) and more often than [[Wade H. McCree]] did during the [[Presidency of Jimmy Carter|Carter Administration]] (1977–1981), in part because Bork filed briefs in favor of the litigants in civil rights cases 75 percent of the time (contradicting a previous review of his civil rights record published in 1983).<ref name="Segal 1988">{{cite journal|last=Segal|first=Jeffrey A.|title=Amicus Curiae Briefs by the Solicitor General during the Warren and Burger Courts: A Research Note|year=1988|journal=[[Political Research Quarterly|The Western Political Quarterly]]|volume=41|issue=1|pages=135–144|publisher=[[SAGE Publishing|SAGE Publications]]|doi=10.2307/448461|jstor=448461}}</ref><ref name="O'Connor 1983">{{cite journal|last=O'Connor|first=Karen|title=The Amicus Curiae Role of the U.S. Solicitor General in Supreme Court Litigation|year=1983|journal=Judicature|volume=66|pages=256–264|url=https://heinonline.org/HOL/LandingPage?handle=hein.journals/judica66&div=48&id=&page=|access-date=August 30, 2019}}</ref>
+
<blockquote>Robert Bork's America 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 the 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&nbsp;... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.<ref>Norman Vieira and Leonard Gross, ''Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations'' (Southern Illinois University Press, 1998, ISBN 978-0809322046).</ref></blockquote>
  
−
Television advertisements produced by [[People For the American Way]] and narrated by [[Gregory Peck]] attacked Bork as an extremist. Kennedy's speech successfully fueled widespread public skepticism of Bork's nomination. The rapid response to Kennedy's "Robert Bork's America" speech stunned the Reagan White House, and the accusations went unanswered for two and a half months.<ref name=Chaddock>{{cite web |title=Court nominees will trigger rapid response |work=[[The Christian Science Monitor]] |date=July 7, 2005 |accessdate=August 10, 2007 |url=http://www.csmonitor.com/2005/0707/p02s01-uspo.html |author=Gail Russell Chaddock}}</ref>
+
Bork responded, "There was not a line in that speech that was accurate."<ref name=econ>[https://www.economist.com/united-states/2009/08/27/a-hell-of-a-senator A hell of a senator] ''The Economist'', August 29, 2009. Retrieved October 16, 2020.</ref> In an obituary of Kennedy, ''[[The Economist]]'' remarked that Bork may well have been correct, "but it worked."<ref name=econ/> Bork also contended in his best-selling book, ''The Tempting of America'',<ref name=Tempting>Robert H. Bork, ''The Tempting of America'' (Free Press, 1997, ISBN 978-0684843377).</ref> that the brief prepared for Senator [[Joe Biden]], head of the Senate Judiciary Committee, "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility."<ref>Damon Root, [https://reason.com/2008/09/09/straight-talk-slowdown/ Straight Talk Slowdown]  ''Reason'', September 9, 2008. Retrieved October 16, 2020.</ref> Opponents of Bork's nomination found the arguments against him justified claiming that Bork believed the Civil Rights Act was unconstitutional, and he supported [[poll tax]]es, literacy tests for voting, mandated school prayer, and sterilization as a requirement for a job, while opposing free speech rights for non-political speech and privacy rights for gay conduct.<ref> Jane Coaston, [https://www.vox.com/2018/9/26/17896126/bork-kavanaugh-supreme-court-conservatives-republicans "Borking," explained: why a failed Supreme Court nomination in 1987 matters] ''Vox'', September 27, 2018. Retrieved October 16, 2020.</ref>  
  
−
During debate over his nomination, Bork's video rental history was leaked to the press. His video rental history was unremarkable, and included such harmless titles as ''[[A Day at the Races (film)|A Day at the Races]]'', ''[[Ruthless People]]'', and ''[[The Man Who Knew Too Much (1956 film)|The Man Who Knew Too Much]]''. Writer Michael Dolan, who obtained a copy of the hand-written list of rentals, wrote about it for the ''[[Washington City Paper]]''.<ref>{{cite web |url=http://www.theamericanporch.com/bork2.htm |title=The Bork Tapes Saga |accessdate=August 17, 2007 |work=The American Porch |url-status=dead |archiveurl=https://web.archive.org/web/20071009144531/http://www.theamericanporch.com/bork2.htm |archivedate=October 9, 2007  }}</ref> Dolan justified accessing the list on the ground that Bork himself had stated that Americans had only such privacy rights as afforded them by direct legislation. The incident led to the enactment of the 1988 [[Video Privacy Protection Act]].<ref>{{cite web | title=Video Privacy Protection Act | url=http://epic.org/privacy/vppa/ }}</ref><ref name="wapo_video">{{cite news |last=Peterson |first=Andrea |date=April 28, 2014 |title=How Washington's last remaining video rental store changed the course of privacy law |url=https://www.washingtonpost.com/news/the-switch/wp/2014/04/28/how-washingtons-last-remaining-video-rental-store-changed-the-course-of-privacy-law/ |work=[[The Washington Post]] |access-date=January 8, 2018 }}</ref>
+
However, in 1988, an analysis published in ''[[Political Research Quarterly|The Western Political Quarterly]]'' of ''[[amicus curiae]]'' briefs filed by [[Solicitor General of the United States|U.S. Solicitors General]] during the [[Warren Court|Warren]] and [[Burger Court]]s found that during Bork's tenure in the position during the [[Richard Nixon|Nixon]] and [[Gerald Ford|Ford]] Administrations (1973–1977), Bork took liberal positions in the aggregate as often as [[Thurgood Marshall]] did during the [[Presidency of Lyndon B. Johnson|Johnson Administration]] (1965–1967) and more often than [[Wade H. McCree]] did during the [[Presidency of Jimmy Carter|Carter Administration]] (1977–1981), in part because Bork filed briefs in favor of the litigants in civil rights cases 75 percent of the time (contradicting a previous review of his civil rights record published in 1983).<ref>Jeffrey A. Segal, [https://journals.sagepub.com/doi/abs/10.1177/106591298804100109?journalCode=prqa Amicus Curiae Briefs by the Solicitor General during the Warren and Burger Courts: A Research Note] ''Western Political Quarterly'' 41(1) (March 1, 1988): 135-144. Retrieved October 16, 2020.</ref>
  
−
To pro-choice rights legal groups, Bork's [[originalism|originalist]] views and his belief that the Constitution did not contain a general "right to privacy" were viewed as a clear signal that, should he become a justice of the Supreme Court, he would vote to reverse the Court's 1973 decision in ''[[Roe v. Wade]]''. Accordingly, a large number of groups mobilized to press for Bork's rejection, and the resulting 1987 [[United States Senate|Senate]] confirmation hearings became an intensely partisan battle.
+
On October 23, 1987, the Senate denied Bork's confirmation, with 42 Senators voting in favor and 58 voting against. Two Democratic senators, [[David Boren]] (D-OK) and [[Ernest Hollings]] (D-SC), voted in his favor, with 6 Republican senators [[John Chafee]] (R-RI), [[Bob Packwood]] (R-OR), [[Arlen Specter]] (R-PA), [[Robert Stafford]] (R-VT), [[John Warner]] (R-VA), and [[Lowell P. Weicker Jr.]] (R-CT) voting against him.<ref>[https://www.nytimes.com/1987/10/24/us/senate-s-roll-call-on-the-bork-vote.html Senate's Roll-Call On the Bork Vote] ''The New York Times'', October 24, 1987. Retrieved October 16, 2020.</ref>
  
−
On October 23, 1987, the Senate denied Bork's confirmation, with 42 Senators voting in favor and 58 voting against. Two Democratic senators, [[David Boren]] (D-OK) and [[Ernest Hollings]] (D-SC), voted in his favor, with 6 Republican senators [[John Chafee]] (R-RI), [[Bob Packwood]] (R-OR), [[Arlen Specter]] (R-PA), [[Robert Stafford]] (R-VT), [[John Warner]] (R-VA), and [[Lowell P. Weicker Jr.]] (R-CT) voting against him.<ref>{{cite news|url=https://www.nytimes.com/1987/10/24/us/senate-s-roll-call-on-the-bork-vote.html|title=Senate's Roll-Call On the Bork Vote|date=October 24, 1987 |work=The New York Times |agency=Associated Press}}</ref>
+
The vacant court seat Bork was nominated to eventually went to Judge [[Anthony Kennedy]], who was unanimously approved by the Senate, 97–0.<ref>Linda Greenhouse, ''Becoming Justice Blackmun'' (Times Books, 2006, ISBN 978-0805080575).</ref> Bork, unhappy with his treatment in the nomination process, resigned his appellate court judgeship in 1988.<ref name=washpost />
  
−
The vacant court seat Bork was nominated to eventually went to Judge [[Anthony Kennedy]], who was unanimously approved by the Senate, 97–0.<ref>Greenhouse, Linda. Becoming Justice Blackmun. Times Books. 2005. Page 189.</ref> Bork, unhappy with his treatment in the nomination process, resigned his appellate court judgeship in 1988.<ref name=washpost />
+
== Later work ==
 +
Following his failure to be confirmed, Bork resigned his seat on the U.S. Court of Appeals for the D.C. Circuit and was for several years both a professor at [[George Mason University School of Law]] and a senior fellow at the [[American Enterprise Institute|American Enterprise Institute for Public Policy Research]], a Washington, DC based [[think tank]]. He was also a fellow at the [[Hudson Institute]]. Bork also consulted for [[Netscape]] in the [[Microsoft]] litigation. He later served as a visiting professor at the [[University of Richmond School of Law]] and was a professor at [[Ave Maria School of Law]] in Naples, Florida.<ref> History Timeline ''Ave Maria School of Law''. </ref>  
  
−
 
+
In 2011, Bork worked as a legal adviser for the presidential campaign of Republican [[Mitt Romney]].<ref> John Light, [https://billmoyers.com/content/romneys-divisive-judicial-advisor-robert-bork/ Romney’s Divisive Judicial Advisor: Robert Bork] ''Moyers on Democracy'', September 14, 2012. Retrieved October 16, 2020.</ref>
−
== Later work ==
 
−
Following his failure to be confirmed, Bork resigned his seat on the U.S. Court of Appeals for the D.C. Circuit and was for several years both a professor at [[George Mason University School of Law]] and a senior fellow at the [[American Enterprise Institute|American Enterprise Institute for Public Policy Research]], a Washington, D.C., based [[think tank]]. Bork also consulted for [[Netscape]] in the [[Microsoft]] litigation. Bork was a fellow at the [[Hudson Institute]]. He later served as a visiting professor at the [[University of Richmond School of Law]] and was a professor at [[Ave Maria School of Law]] in Naples, Florida.<ref>{{Cite web|url=http://www.avemarialaw.edu/page-section/history-timeline/|title=History Timeline – Ave Maria School of Law|website=Ave Maria School of Law|language=en-US|access-date=March 11, 2016}}</ref> In 2011, Bork worked as a legal adviser for the presidential campaign of Republican [[Mitt Romney]].<ref>{{cite web|author=Grove, Lloyd |url=http://www.thedailybeast.com/newsweek/2011/10/16/robert-bork-on-romney-obama-and-biden.html |title=Robert Bork's Romney Connection |work=Newsweek |date=October 17, 2011 |accessdate=December 20, 2012 |archiveurl = https://web.archive.org/web/20111103232028/http://www.thedailybeast.com/newsweek/2011/10/16/robert-bork-on-romney-obama-and-biden.html |archivedate = November 3, 2011}}</ref>
 
  
 
== Views ==
 
== Views ==
−
=== Advocacy of originalism ===
+
Bork is known for his theory that the only way to reconcile the role of the judiciary in the U.S. government against what he terms the "[[James Madison|Madisonian]]" or "counter-majoritarian" dilemma of the judiciary making law without popular approval is for constitutional adjudication to be guided by the framers' [[originalism|original understanding]] of the [[United States Constitution]]. Reiterating that it is a court's task to adjudicate and not to "legislate from the bench," he advocated that [[judicial restraint|judges exercise restraint]] in deciding cases, emphasizing that the role of the courts is to frame "neutral principles" (a term borrowed from [[Herbert Wechsler]]) and not simply ''[[ad hoc]]'' pronouncements or subjective value judgments. Bork once said, "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else."<ref>Dennis J. Goldford, ''The American Constitution and the Debate Over Originalism'' (Cambridge University Press, 2005, ISBN 978-0521845588). </ref>
−
Bork is known{{by whom|date=June 2019}} for his theory that the only way to reconcile the role of the judiciary in the U.S. government against what he terms the "[[James Madison|Madisonian]]" or "counter-majoritarian" dilemma of the judiciary making law without popular approval is for constitutional adjudication to be guided by the framers' [[originalism|original understanding]] of the [[United States Constitution]]. Reiterating that it is a court's task to adjudicate and not to "legislate from the bench," he advocated that [[judicial restraint|judges exercise restraint]] in deciding cases, emphasizing that the role of the courts is to frame "neutral principles" (a term borrowed from [[Herbert Wechsler]]) and not simply ''[[ad hoc]]'' pronouncements or subjective value judgments. Bork once said, "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else."<ref name="originalism debate">{{Cite book |title = The American Constitution and the Debate Over Originalism |author = Dennis J. Goldford |publisher = Cambridge University Press |url = https://books.google.com/books?id=w9lFMxRsI7AC |year = 2005 |isbn = 978-0-521-84558-8 |page = 174 |accessdate = October 26, 2008 |ref = harv }}</ref>
 
  
−
Bork built on the influential critiques of the [[Warren Court]] authored by [[Alexander Bickel]], who criticized the Supreme Court under [[Earl Warren]], alleging shoddy and inconsistent reasoning, undue [[Judicial activism|activism]], and misuse of historical materials. Bork's critique was harder-edged than Bickel's, however, and he has written, "We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own." Bork's writings influenced the opinions of judges such as [[Associate Justice of the U.S. Supreme Court|Associate Justice]] [[Antonin Scalia]] and [[Chief Justice of the United States|Chief Justice]] [[William Rehnquist]] of the [[Supreme Court of the United States|U.S. Supreme Court]], and sparked a vigorous debate within legal academia about how to [[Judicial interpretation|interpret]] the Constitution.
+
Bork built on the influential critiques of the [[Warren Court]] authored by [[Alexander Bickel]], who criticized the Supreme Court under [[Earl Warren]], alleging shoddy and inconsistent reasoning, undue [[Judicial activism|activism]], and misuse of historical materials. Bork's critique was harder-edged than Bickel's: "We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own."<ref name=Tempting/> Bork's writings influenced the opinions of judges such as [[Associate Justice of the U.S. Supreme Court|Associate Justice]] [[Antonin Scalia]] and [[Chief Justice of the United States|Chief Justice]] [[William Rehnquist]] of the [[Supreme Court of the United States|U.S. Supreme Court]], and sparked a vigorous debate within legal academia about how to [[Judicial interpretation|interpret]] the Constitution.
  
−
Some conservatives criticized Bork's approach. Conservative scholar [[Harry Jaffa]] criticized Bork (along with Rehnquist and Scalia) for failing to adhere to [[natural law]] principles.<ref name = Jaffa>{{Cite news |last = Linstrum |first= Erik |title = Political scholar Jaffa defends moral foundation of government |periodical = The Daily Princetonian |date = September 30, 2003 |url = http://www.dailyprincetonian.com/2003/09/30/8663/ |accessdate = December 11, 2010 |ref = harv |archiveurl=https://web.archive.org/web/20090605200549/http://www.dailyprincetonian.com/2003/09/30/8663/ |archivedate=June 5, 2009 }}</ref> [[Robert P. George]] explained Jaffa's critique this way: "He attacks Rehnquist and Scalia and Bork for their embrace of [[legal positivism]] that is inconsistent with the doctrine of [[natural rights]] that is embedded in the [[Constitution of the United States|Constitution]] they are supposed to be interpreting."<ref name=Jaffa/>
+
In ''The Tempting of America'', Bork explained his support for the Supreme Court's desegregation decision in ''[[Brown v. Board of Education]]'':
 +
<blockquote>By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases…  The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.<ref name=Tempting/></blockquote>
  
 +
In 2003, Bork published ''Coercing Virtue: The Worldwide Rule Of Judges'', an [[American Enterprise Institute]] book that includes Bork's philosophical objections to the phenomenon of incorporating international ethical and legal guidelines into the fabric of domestic law. In particular, he focused on problems he sees as inherent in the federal judiciary of three nations, [[Israel]], [[Canada]], and the United States—countries where he believes courts have exceeded their discretionary powers, and have discarded [[precedent]] and [[common law]], and in their place substituted their own liberal judgment.<ref>Robert H. Bork, ''Coercing Virtue: The Worldwide Rule Of Judges'' (Aei Press, 2003, ISBN 978-0844741628).</ref>
  
−
Bork wrote several books, including the two best-sellers ''[[The Tempting of America]]'', about his judicial philosophy and his nomination battle, and ''[[Slouching Towards Gomorrah|Slouching Towards Gomorrah: Modern Liberalism and American Decline]]'', in which he argued that the rise of the [[New Left]] in the 1960s in the U.S. undermined the [[morality |moral]] standards necessary for [[civil society]], and spawned a generation of [[intellectual]]s who oppose [[Western civilization]]. During the period these books were written, as well as most of his adult life, Bork was an agnostic. He converted to [[Catholic Church|Catholicism]] in 2003.<ref>{{cite web |url=http://www.catholiceducation.org/articles/catholic_stories/cs0048.html |title=Judge Bork Converts to the Catholic Faith |accessdate=August 17, 2007 |work= National Catholic Register |archiveurl=https://web.archive.org/web/20031004162744/http://www.catholiceducation.org/articles/catholic_stories/cs0048.html |archivedate=October 4, 2003}}</ref>
+
==Legacy==
−
 
+
Following Bork's death, [[Antonin Scalia]] referred to him as "one of the most influential legal scholars of the past 50 years" and "a good man and a loyal citizen." [[Mike Lee (U.S. politician)|Mike Lee]], senator from Utah, called Bork "one of America's greatest jurists and a brilliant legal mind."<ref>Bill Mears, [http://www.cnn.com/2012/12/19/politics/robert-bork-dead/index.html Robert Bork, known for contentious Supreme Court nomination, dies at 85] ''CNN'', December 19, 2012. Retrieved October 15, 2020. </ref>  
−
In ''The Tempting of America'', p. 82, Bork explained his support for the Supreme Court's desegregation decision in ''[[Brown v. Board of Education]]'':
 
−
{{Quote | By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases…  The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.}}
 
−
 
 
−
Bork opposed the [[Civil Rights Act of 1964]], saying that the provisions within the Act which prohibited [[Public accommodations |racial discrimination by public accommodations]] were based on a principle of "unsurpassed ugliness".<ref>{{Cite news|url= https://www.upi.com/Archives/1987/09/16/Supreme-Court-nominee-Robert-Bork-distanced-himself-Wednesday-from/2896558763200/|title=Supreme Court nominee Robert Bork distanced himself Wednesday from… |work=UPI|access-date= 2018-09-29}}</ref><ref>{{Cite web|url= https://www.huffingtonpost.com/michael-c-dorf/a-principle-of-unsurpasse_b_5044574.html|title=A Principle of Unsurpassed Ugliness|last=Dorf|first= Michael C. |date= 2014-03-27|website= Huffington Post |language=en-US|access-date= 2018-09-29}}</ref>  Bork opposed the 1965 Supreme Court ruling in ''[[Griswold v. Connecticut]],'' which struck down a Connecticut law that prohibited the use of contraceptives for married couples.<ref name=.>{{Cite news |url= https://www.nytimes.com/1987/07/27/us/bork-at-yale-collegues-recall-a-friend-but-a-philosophical-foe.html|title= Bork at Yale: collegues recall a friend but a philosophical foe |first=Stuart | last = Taylor Jr. | work = The New York Times|access-date=2018-09-29|language= en}}</ref> Bork said the decision was "utterly specious," "unprincipled" and "intellectually empty."<ref name=":0">{{Cite news|url=https://www.nytimes.com/1987/07/27/us/bork-at-yale-collegues-recall-a-friend-but-a-philosophical-foe.html|title=BORK AT YALE: COLLEGUES RECALL A FRIEND BUT A PHILOSOPHICAL FOE|last=Times|first=Stuart Taylor Jr. and Special To the New York|access-date=2018-09-29|language=en}}</ref> Bork held that the Constitution only protected speech that was "explicitly political", and that there were no free speech protections for "scientific, literary or that variety of expression we call obscene or pornographic."<ref>{{Cite news|url=https://www.nytimes.com/1987/09/21/us/judge-bork-vs-himself-evolution-of-his-views.html|title=Judge Bork vs. Himself: Evolution of His Views|access-date= 2018-09-29|language=en}}</ref> However, in 1988, an analysis published in ''[[Political Research Quarterly|The Western Political Quarterly]]'' of ''[[amicus curiae]]'' briefs filed by [[Solicitor General of the United States|U.S. Solicitors General]] during the [[Warren Court|Warren]] and [[Burger Court]]s found that during Bork's tenure in the position during the [[Presidency of Richard Nixon|Nixon]] and [[Presidency of Gerald Ford|Ford Administrations]] (1973–77), Bork took liberal positions in the aggregate as often as [[Thurgood Marshall]] did during the [[Presidency of Lyndon B. Johnson|Johnson Administration]] (1965–67) and more often than [[Wade H. McCree]] did during the [[Presidency of Jimmy Carter|Carter Administration]] (1977–81), in part because Bork filed briefs in favor of the litigates in civil rights cases 75 percent of the time (contradicting a previous review of his civil rights record published in 1983).<ref name="Segal 1988" /><ref name="O'Connor 1983" />
 
−
 
 
−
In 1998 he reviewed [[High Crimes and Misdemeanors: The Case Against Bill Clinton|Ann Coulter's book on impeaching President Clinton]], pointing out that "'[[High crimes and misdemeanors]]' are not limited to actions that are crimes under federal law."<ref>{{cite journal |title=Thinking the unthinkable |last1=Bork|first1=Robert H. |journal=[[The Wall Street Journal]] |volume=232 |issue=46 |year=1998 |doi= |ref=harv |url=https://www.wsj.com/articles/SB904798562566698000}}</ref>
 
−
 
 
−
In 1999, Bork wrote an essay about [[Thomas More]] and attacked [[jury nullification]] as a "pernicious practice".<ref>{{cite web |url=http://www.leaderu.com/ftissues/ft9906/articles/bork.html |title=Thomas More for Our Season |accessdate=August 17, 2007 |work=Leadership U}}</ref> Bork once quoted More in summarizing his judicial philosophy.<ref>{{cite web |url=http://www.utahpatentattorneys.com/File/c2c851b5-8b2b-4dfb-b1b7-ff7ba1ead084 |title=Regula Pro Lege, Si Deficit Lex: The Latin Sapience of High Judges |accessdate=November 17, 2016 |work=The Federal Bar Association}}</ref> In 2003, he published ''Coercing Virtue: The Worldwide Rule Of Judges'', an [[American Enterprise Institute]] book that includes Bork's philosophical objections to the phenomenon of incorporating international ethical and legal guidelines into the fabric of domestic law. In particular, he focuses on problems he sees as inherent in the federal judiciary of three nations, [[Israel]], [[Canada]], and the United States—countries where he believes courts have exceeded their discretionary powers, and have discarded [[precedent]] and [[common law]], and in their place substituted their own liberal judgment.
 
−
 
 
−
Bork also advocated modifying the [[United States Constitution|Constitution]] to allow Congressional super-majorities to override Supreme Court decisions, similar to the Canadian [[Section Thirty-three of the Canadian Charter of Rights and Freedoms|notwithstanding clause]]. Though Bork had many liberal critics, some of his arguments have earned criticism from conservatives as well. Although an opponent of gun control,<ref>{{cite web |url=https://www.mises.org/misesreview_detail.aspx?control=22&sortorder=issue |title= Slouching Towards Gomorrah: Modern Liberalism and American Decline |accessdate=January 1, 2008 |work= The Mises Review |archiveurl = https://web.archive.org/web/20120825024049/https://www.mises.org/misesreview_detail.aspx?control=22&sortorder=issue |archivedate = August 25, 2012}}</ref> Bork denounced what he called the "[[National Rifle Association|NRA]] view" of the [[Second Amendment to the United States Constitution|Second Amendment]], something he described as the "belief that the constitution guarantees a right to [[Teflon-coated bullet]]s." Instead, he argued that the Second Amendment merely guarantees a right to participate in a government [[militia]].<ref>''Life'' Magazine, Vol 14, No. 13.</ref>
 
−
 
 
−
 
 
−
In October 2005, Bork publicly criticized the nomination of [[Harriet Miers]] to the Supreme Court saying her nomination was "a disaster on every level."<ref>{{cite web |url=http://www.mercurynews.com/mld/mercurynews/news/politics/12853325.htm |title=Bush says Miers has experience, leadership |accessdate=August 17, 2007 |work=The Mercury News |archiveurl=https://web.archive.org/web/20051028094759/http://www.mercurynews.com/mld/mercurynews/news/politics/12853325.htm |archivedate=October 28, 2005}}</ref><ref>Robert H. Bork, "[http://www.opinionjournal.com/editorial/feature.html?id=110007424 Slouching Towards Miers]", ''[[Wall Street Journal]]'', October 19, 2005, p. A12.</ref>
 
  
−
On June 6, 2007, Bork filed suit in federal court in [[New York City]] against the [[Yale Club of New York City|Yale Club]] over an incident that had occurred a year earlier. Bork alleged that, while trying to reach the [[dais]] to speak at an event, he fell, because of the Yale Club's failure to provide any steps or handrail between the floor and the dais. (After his fall, he successfully climbed to the dais and delivered his speech.)<ref>{{cite web |url=http://chronicle.com/news/article/2456/robert-bork-cites-wanton-negligence-in-suing-yale-club-for-1-million |title=Robert Bork Cites 'Wanton' Negligence in Suing Yale Club for $1-Million |accessdate=August 17, 2007 |work=The Chronicle of Higher Education}}</ref> According to the complaint, Bork's injuries required surgery, immobilized him for months, forced him to use a cane, and left him with a limp.<ref>{{cite news |url=https://online.wsj.com/public/resources/documents/borksuit-060607.pdf |title=Robert H. Bork v. The Yale Club of New York City |accessdate=August 17, 2007 |work= United States Court Southern District of New York}}</ref> In May 2008, Bork and the Yale Club reached a confidential, out-of-court settlement.<ref>{{cite news|url= http://www.nydailynews.com/news/2008/05/10/2008-05-10_supreme_nominee_bork_settles_yale_suit.html |title=Supreme nominee Bork settles Yale suit |work=Daily News|location=New York |date=May 9, 2008 |accessdate= June 20, 2010 | first= Thomas | last=Zambito | archiveurl= https://web.archive.org/web/20080512082957/http://www.nydailynews.com/news/2008/05/10/2008-05-10_supreme_nominee_bork_settles_yale_suit.html | archivedate = May 12, 2008 |url-status=live}}</ref>
+
He was regarded as a hero to conservatives, who "for decades, decades, Judge Bork was a major architect of the conservative rebuttal to what he considered liberal judicial activism."<ref>Mark Memmott, [https://www.npr.org/sections/thetwo-way/2012/12/19/167614048/family-robert-bork-who-was-turned-down-for-supreme-court-dies Robert Bork, Who Was Turned Down For Supreme Court, Dies] ''NPR'', December 19, 2020. Retrieved October 15, 2020.</ref>  
  
−
On June 7, 2007, Bork with several others authored an ''amicus'' brief on behalf of [[Lewis Libby|Scooter Libby]] arguing that there was a substantial constitutional question regarding the appointment of the prosecutor in the case, reviving the debate that had previously resulted in the ''[[Morrison v. Olson]]'' decision.<ref>{{cite web |url= http://www.pegc.us/archive/US_v_Libby/amar_amicus_20070608.pdf |title=United States of America v. Lewis Libby |accessdate= August 17, 2007 | publisher = United States District Court for the District of Columbia}}</ref>
 
−
 
−
On December 15, 2007, Bork endorsed [[Mitt Romney]] for president.  He repeated this endorsement on August 2, 2011.
 
−
 
−
==Legacy==
 
 
A 2008 issue of the ''[[Harvard Journal of Law and Public Policy]]'' collected essays in tribute to Bork. Authors included [[Frank H. Easterbrook]], [[George Priest]], and [[Douglas Ginsburg]].
 
A 2008 issue of the ''[[Harvard Journal of Law and Public Policy]]'' collected essays in tribute to Bork. Authors included [[Frank H. Easterbrook]], [[George Priest]], and [[Douglas Ginsburg]].
  
 +
Bork is probably best remembered for the contentious Senate confirmation battle that followed his nomination to the [[United States Supreme Court|US Supreme Court]]:
 +
<blockquote>
 +
The acrimony of that confirmation, which included Sen. Edward Kennedy’s now-infamous description of “Robert Bork’s America” and featured a denunciation by Bill Clinton (a former student of Bork’s from his years of teaching at Yale), has cast a long shadow over subsequent Supreme Court nominations.<ref name=NCR/></blockquote>
  
−
=== ''Bork'' as a verb ===
+
==="Bork" as a verb ===
−
<!--If renaming section, please update redirects—>
+
Unfortunately, as a result of that infamous Senate hearing, Robert Bork's legacy most prominently includes the use of his name as a verb. The ''[[Oxford English Dictionary]]'' has an entry for the verb "to bork" as U.S. political slang, with this definition: "Obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them."<ref>[https://www.lexico.com/en/definition/bork "bork"] ''Lexico''. Retrieved October 14, 2020.</ref>
−
According to columnist [[William Safire]], the first published use of ''bork'' as a verb was possibly in ''[[The Atlanta Journal-Constitution]]'' of August 20, 1987. Safire defines ''to bork'' by reference "to the way Democrats savaged Ronald Reagan's nominee, the Appeals Court judge Robert H. Bork, the year before."<ref>{{cite news |first=William |last=Safire |title=On Language: The End of Minority |url=https://www.nytimes.com/2001/05/27/magazine/the-way-we-live-now-5-27-01-on-language-judge-fights.html |work=New York Times Magazine |id=Document ID 383739671, ProQuest Historical Newspapers The New York Times (1851–2004) database |page=12 |date=May 27, 2001|quote=judge fights 'borking' needed to stop court-packing? }}</ref>  Perhaps the best-known use of the verb ''to bork'' occurred in July 1991 at a conference of the [[National Organization for Women]] in [[New York City]]. Feminist [[Florynce Kennedy]] addressed the conference on the importance of defeating the nomination of [[Clarence Thomas]] to the U.S. Supreme Court, saying, "We're going to ''bork'' him. We're going to kill him politically&nbsp;... This little creep, where did he come from?"<ref>{{cite web |url=http://opinionjournal.com/diary/?id=85000412 |author=John Fund |date=January 8, 2001 |title=The Borking Begins |accessdate=August 17, 2007 |work=The Wall Street Journal}}</ref> Thomas was subsequently confirmed after the most divisive confirmation hearing in Supreme Court history to that point.
 
  
−
In March 2002, the ''[[Oxford English Dictionary]]'' added an entry for the verb ''bork'' as U.S. political slang, with this definition: "To defame or vilify (a person) systematically, esp. in the mass media, usually to prevent his or her appointment to public office; to obstruct or thwart (a person) in this way."<ref>v. https://en.oxforddictionaries.com/definition/bork</ref>
+
According to columnist [[William Safire]], the first published use of "bork" as a verb was possibly in ''[[The Atlanta Journal-Constitution]]'' of August 20, 1987. Safire defines "to bork" by reference "to the way Democrats savaged Ronald Reagan's nominee, the Appeals Court judge Robert H. Bork, the year before."<ref>William Safire, [https://www.nytimes.com/2001/05/27/magazine/the-way-we-live-now-5-27-01-on-language-judge-fights.html The Way We Live Now: 5-27-01: On Language; Judge Fights] ''The New York Times Magazine'', May 27, 2001. Retrieved October 14, 2020. </ref>
  
−
There was an earlier usage of ''bork'' as a passive verb, common among litigators in the D.C. Circuit: to ''"get borked"'' was to receive a conservative judicial decision with legal interpretation disagreements, which included many disputes with democrats reflecting their perceptions.
+
Perhaps the best-known use of the verb "to bork" occurred in July 1991 at a conference of the [[National Organization for Women]] in [[New York City]]. Feminist [[Florynce Kennedy]] addressed the conference on the importance of defeating the nomination of [[Clarence Thomas]] to the U.S. Supreme Court, saying, "We're going to 'bork' him. We're going to kill him politically.<ref> Steve Barrett, [https://www.timesfreepress.com/news/opinion/columns/story/2011/nov/06/barrett-herman-cain-faced-clarence-thomas-treatmen/63144/ Herman Cain faced with the Clarence Thomas treatment] ''Chattanooga Times Free Press'', November 6, 2011. Retrieved October 14, 2020.</ref> Thomas was subsequently confirmed after the most divisive confirmation hearing in Supreme Court history to that point.
  
−
Associate Supreme Court Justice [[Brett Kavanaugh]] used the term during his own contentious Senate confirmation hearing testimony when he stated that "The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at ''borking''."<ref>{{cite web |title=Kavanaugh hearing: Transcript |url=https://www.washingtonpost.com/news/national/wp/2018/09/27/kavanaugh-hearing-transcript |publisher=Bloomberg Government |accessdate=17 October 2018}}</ref>
+
Associate Supreme Court Justice [[Brett Kavanaugh]] used the term during his own contentious Senate confirmation hearing testimony when he stated that "The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at borking."<ref>[https://www.washingtonpost.com/news/national/wp/2018/09/27/kavanaugh-hearing-transcript/ Kavanaugh hearing: Transcript] ''The Washington Post'', September 27, 2018. Retrieved October 14, 2020.</ref>
  
 
== Selected writings ==
 
== Selected writings ==
−
* {{cite journal |last= Bork |first= Robert H. |year=1971 |title=Neutral Principles and Some First Amendment Problems |volume=47 |journal= [[Indiana Law Journal|Ind. L. J.]] |issue= |page=1 |url= http://www.repository.law.indiana.edu/ilj/vol47/iss1/1}} This paper has been identified as one of the most cited legal articles of all time.<ref>{{cite journal |volume= 110 |journal= [[Michigan Law Review |Mich. L. Rev.]] |issue= |pages= 1483–1520 |year= 2012 |title=The Most-Cited Law Review Articles of All Time |last= Shapiro |first= Fred R. |last2= Pearse |first2=Michelle}}</ref>
+
* 1971. [https://www.repository.law.indiana.edu/ilj/vol47/iss1/1 Neutral Principles and Some First Amendment Problems] ''Indiana Law Journal'' 47(1). Retrieved October 12, 2020. This paper has been identified as one of the most cited legal articles of all time.<ref> Fred R. Shapiro and  Michelle Pearse, [https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1084&context=mlr The Most-Cited Law Review Articles of All Time] ''Michigan Law Review'' 110(8) (2012): 1483–1520. Retrieved October 12, 2020.</ref>
−
* ––– (1978). ''[[The Antitrust Paradox]]''. New York: Free Press. {{ISBN|0-465-00369-9}}.
+
* 1978. ''The Antitrust Paradox''. New York: Free Press. ISBN 978-0029044568
−
* ––– (1990). ''The Tempting of America''. New York: Free Press. {{ISBN|0-684-84337-4}}.
+
* 1990. ''The Tempting of America''. New York: Free Press. ISBN 978-0684843377
−
* ––– (1993). ''The Antitrust Paradox'', 2nd ed. New York: Free Press. {{ISBN|0-02-904456-1}}.
+
* 1996. ''Slouching Towards Gomorrah: Modern Liberalism and American Decline''. New York: ReganBooks. ISBN 978-0060573119
−
* ––– (1996). ''[[Slouching Towards Gomorrah]] Modern Liberalism and American Decline''. New York: ReganBooks. {{ISBN |0-06-039163-4}}.
+
* 2003. ''Coercing Virtue: The Worldwide Rule of Judges''. Washington, DC: American Enterprise Institute Press. ISBN 978-0844741628
−
* ––– (2003). ''Coercing Virtue: The Worldwide Rule of Judges''. Washington, DC: American Enterprise Institute Press. {{ISBN|0-8447-4162-0}}.
+
* 2005. ''A Country I Do Not Recognize: The Legal Assault on American Values''. Stanford: Hoover Institution Press. ISBN 978-0817946029
−
* ––– (ed.) (2005).'' A Country I Do Not Recognize: The Legal Assault on American Values''. Stanford: Hoover Institution Press. {{ISBN|0-8179-4602-0}}.
+
* 2008. ''A Time to Speak: Selected Writings and Arguments''. Wilmington, DE: ISI Books. ISBN 978-1933859682
−
* ––– (2008) ''A Time to Speak: Selected Writings and Arguments''. Wilmington, DL: ISI Books. {{ISBN|978-1-93385968-2}}
+
* 2013. ''Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General''.  New York: Encounter Books. ISBN 978-1594036811
−
* ––– (2013) ''Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General''.  New York: Encounter Books. {{ISBN|978-1-59403681-1}}
 
  
−
== References ==
+
== Notes ==
−
{{Reflist}}
+
<references/>
  
 
==References==
 
==References==
−
 
+
* Bork, Robert H. ''The Tempting of America''. Free Press, 1997. ISBN 978-0684843377
−
 
+
* Bork, Robert H. ''Coercing Virtue: The Worldwide Rule Of Judges''. Aei Press, 2003. ISBN 978-0844741628
−
 
+
* Bronner, Ethan. ''Battle for Justice: How the Bork Nomination Shook America''. W W Norton & Co Inc, 1989. ISBN 978-0393026900
−
 
+
* Goldford, Dennis J. ''The American Constitution and the Debate Over Originalism''. Cambridge University Press, 2005. ISBN 978-0521845588
−
* {{Cite book|last=Bronner|first=Ethan|title=Battle for Justice: How the Bork Nomination Shook America|url=https://books.google.com/books?id=VpFLtmfnRaMC|place=[[New York City|New York]], [[New York (state)|New York]], United States|publisher=Sterling|year=2007|isbn=978-1-4027-5227-8|ref=harv}}
+
* Greenhouse, Linda. ''Becoming Justice Blackmun''. Times Books, 2006. ISBN 978-0805080575
−
* {{Cite book|last=Vile|first=John R.|title=Great American Judges: An Encyclopedia|url=https://books.google.com/books?id=U6uJ-oWsZFYC|place=[[Santa Barbara, California|Santa Barbara]], [[California]], [[United States]]|publisher=ABC-CLIO|year=2003|isbn=1-57607-989-9|ref=harv}}
+
* Staff. ''The Americana Annual, 1988''. Grolier, 1989. ISBN 978-0717202195
 +
* Vieira, Norman, and Leonard Gross. ''Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations''. Southern Illinois University Press, 1998. ISBN 978-0809322046
 +
* Vile, John R. ''Great American Judges''. ABC-CLIO, 2003. ISBN 978-1576079898
  
 
== External links ==
 
== External links ==
−
All links retrieved  
+
All links retrieved December 14, 2022.
 
* [https://www.fjc.gov/node/1378046 Robert Heron Bork] ''Federal Judicial Center''
 
* [https://www.fjc.gov/node/1378046 Robert Heron Bork] ''Federal Judicial Center''
 
* [https://www.senate.gov/reference/resources/pdf/348_1987.pdf Congressional Record: Floor Vote on Bork Nomination]
 
* [https://www.senate.gov/reference/resources/pdf/348_1987.pdf Congressional Record: Floor Vote on Bork Nomination]
 
* [https://www.pbs.org/thinktank/bio_1054.html Robert Bork on "Think Tank"] ''PBS''
 
* [https://www.pbs.org/thinktank/bio_1054.html Robert Bork on "Think Tank"] ''PBS''
 
* Bork, Robert H. [https://www.firstthings.com/article/1996/11/the-end-of-democracy-our-judicial-oligarchy The End of Democracy? Our Judicial Oligarchy] ''First Things'', November, 1996.  
 
* Bork, Robert H. [https://www.firstthings.com/article/1996/11/the-end-of-democracy-our-judicial-oligarchy The End of Democracy? Our Judicial Oligarchy] ''First Things'', November, 1996.  
−
* {{IMDb name|id=0096903}}
 
 
* [https://www.findagrave.com/memorial/102351274/robert-heron-bork Robert Heron Bork] ''Find-A-Grave''
 
* [https://www.findagrave.com/memorial/102351274/robert-heron-bork Robert Heron Bork] ''Find-A-Grave''
  

Latest revision as of 21:10, 16 April 2023

Robert Bork
Robert Bork

Judge of the United States Court of Appeals for the District of Columbia Circuit
In office
February 9, 1982 – February 5, 1988
President Ronald Reagan
Preceded by Carl E. McGowan
Succeeded by Clarence Thomas
United States Attorney General
Acting
In office
October 20, 1973 – January 4, 1974
President Richard Nixon
Preceded by Elliot Richardson
Succeeded by William B. Saxbe
35th Solicitor General of the United States
In office
March 21, 1973 – January 20, 1977
President Richard Nixon
Gerald Ford
Preceded by Erwin Griswold
Succeeded by Wade H. McCree
Born March 01 1927(1927-03-01)
Pittsburgh, Pennsylvania, U.S.
Died December 19 2012 (aged 85)
Arlington, Virginia, U.S.
Political party Republican
Spouse Claire Davidson
​(m. 1952; d. 1980)
Mary Ellen Pohl
(m. 1982; d. 2012)
Children 3

Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American judge, government official, and legal scholar who served as the Solicitor General of the United States from 1973 to 1977. A professor at Yale Law School by occupation, he later served as a judge on the influential U.S. Court of Appeals for the D.C. Circuit from 1982 to 1988. In 1987, President Ronald Reagan nominated Bork to the U.S. Supreme Court, but the U.S. Senate rejected his nomination.

The contentious confirmation battle that led to the Senate rejecting Bork's nomination revealed a bitter partisan climate that valued political affiliation and beliefs over the ability and experience to serve as a Supreme Court justice. Attacks that were filled with inaccuracies, such as that by Senator Ted Kennedy at the hearings, have had long-lasting consequences. Despite being recognized as one of the most influential legal scholars of the late twentieth century, Bork's legacy includes the use of his name as the verb "to bork," referring to the obstruction of a person being able to take office through systematically defaming or vilifying them.

Life

Bork was born in Pittsburgh, Pennsylvania. His father was Harry Philip Bork Jr. (1897–1974), a steel company purchasing agent, and his mother was Elisabeth (née Kunkle; 1898–2004), a schoolteacher. His father was of German and Irish ancestry, while his mother was of Pennsylvania Dutch (German) descent.[1]

Bork attended the Hotchkiss School in Lakeville, Connecticut,[2] and earned B.A. and J.D. degrees from the University of Chicago. While pursuing his bachelor's degree he became a brother of the international social fraternity of Phi Gamma Delta. While in law school, he served on the University of Chicago Law Review.

He married Claire Davidson in 1952. They had a daughter, Ellen, and two sons, Robert and Charles.

At Chicago he was awarded a Phi Beta Kappa key with his J.D. degree in 1953, and passed the bar in Illinois that same year. After a period of service in the United States Marine Corps, Bork began as a lawyer in private practice in 1954 at Kirkland & Ellis[3] in Chicago, and then took a position at Yale Law School in 1962. He served as Solicitor-General from 1972 until 1977, when he returned to Yale.

In 1980, his wife Claire died of cancer. In 1982, Bork married Mary Ellen Pohl,[4] a Catholic religious sister turned activist.[5]

In 1982 Bork was appointed to the US Court of Appeals, and in 1987 President Ronald Reagan nominated him to fill a vacancy on the US Supreme Court. The Senate rejected his nomination, and Bork resigned his judgeship to return to teaching the law.

Bork wrote several books, including the two best-sellers The Tempting of America, about his judicial philosophy and his nomination battle, and Slouching Towards Gomorrah: Modern Liberalism and American Decline, in which he argued that the rise of the New Left in the 1960s in the U.S. undermined the moral standards necessary for civil society, and spawned a generation of intellectuals who oppose Western civilization. During the period these books were written, as well as most of his adult life, Bork was an agnostic. He converted to Catholicism in 2003.[6]

Bork died of complications from heart disease at the Virginia Hospital Center in Arlington, Virginia, on December 19, 2012.[7][8] He is interred at Fairfax Memorial Park.

Work

Bork's legal career led him to serve as a legal professor and scholar, government official, and judge.

Legal scholar

Bork served as a professor at Yale Law School from 1962 to 1975, and again from 1977 to 1981. Among his students during this time were Bill Clinton, Hillary Clinton, Anita Hill, Robert Reich, Jerry Brown, John R. Bolton, Samuel Issacharoff, and Cynthia Estlund.[9]

Bork became a prominent advocate of originalism, calling for judges to adhere to the framers' original understanding of the United States Constitution. His 1971 article, "Neutral Principles and Some First Amendment Problems," published in the Indiana Law Journal[10] championed the view that justices should declare laws unconstitutional only when elected officials had clearly acted in defiance of the original understanding or original meaning of constitutional language, in other words a position designed to limit judicial power.[11]

He also became an influential antitrust scholar. In his book, The Antitrust Paradox, he argued that consumers often benefited from corporate mergers, and that many then-current readings of the antitrust laws were economically irrational and hurt consumers. He posited that the primary focus of antitrust laws should be on consumer welfare rather than ensuring competition, as fostering competition of companies within an industry has a natural built-in tendency to allow, and even help, many poorly run companies with methodologies and practices that are both inefficient and expensive to continue in business simply for the sake of competition, to the detriment of both consumers and society. Bork's writings on antitrust law—together with those of Richard Posner and other Chicago School thinkers—were influential in causing a shift in the Supreme Court's approach to antitrust laws.[12]

Solicitor General

From 1973 to 1977, Bork served as Solicitor General in the U.S. Department of Justice under President Richard Nixon and President Gerald Ford.[13]

Bork greeting President Gerald Ford in 1975

As solicitor general, he argued several high-profile cases before the Supreme Court in the 1970s, including 1974's Milliken v. Bradley, where his brief in support of the State of Michigan was influential among the justices. Chief Justice Warren Burger called Bork the most effective counsel to appear before the court during his tenure. Bork hired many young attorneys as assistants who went on to have successful careers, including judges Danny Boggs and Frank H. Easterbrook as well as Robert Reich, later secretary of labor in the Clinton administration.

"Saturday Night Massacre"

On October 20, 1973, Bork was instrumental in the "Saturday Night Massacre" when President Richard Nixon ordered the firing of Watergate Special Prosecutor Archibald Cox following Cox's request for tapes of his Oval Office conversations. Nixon initially ordered U.S. Attorney General Elliot Richardson to fire Cox. Richardson resigned rather than carry out the order. Richardson's top deputy, Deputy Attorney General William Ruckelshaus, also considered the order "fundamentally wrong"[14] and resigned, making Bork acting attorney general. When Nixon reiterated his order, Bork complied and fired Cox.

Bork claimed he carried out the order under pressure from Nixon's attorneys and intended to resign immediately afterward, but was persuaded by Richardson and Ruckelshaus to stay on for the good of the Justice Department.[15] Bork remained acting attorney general until the appointment of William B. Saxbe on January 4, 1974.[16] In his posthumously published memoirs, Bork claimed that after he carried out the order, Nixon promised him the next seat on the Supreme Court, though Bork didn't take the offer seriously as he believed that Watergate had left Nixon too politically compromised to appoint another justice.[15] Nixon would never get the chance to carry out his promise to Bork, as the next Supreme Court vacancy came after Nixon resigned and Gerald Ford assumed the presidency, with Ford instead nominating John Paul Stevens following the 1975 retirement of William O. Douglas.

Judge

United States Circuit Judge

Bork was a circuit judge for the United States Court of Appeals for the District of Columbia Circuit from 1982 to 1988. He was nominated by President Reagan on December 7, 1981, and was confirmed with a unanimous consent voice vote by the Senate on February 8, 1982.[17]

One of his opinions while on the D.C. Circuit was Dronenburg v. Zech, 741 F.2d 1388, decided in 1984. This case involved James L. Dronenburg, a sailor who had been administratively discharged from the navy for engaging in homosexual conduct. Dronenburg argued that his discharge violated his right to privacy. This argument was rejected in an opinion written by Bork and joined by Antonin Scalia, in which Bork critiqued the line of Supreme Court cases upholding a right to privacy.[18]

In rejecting Dronenburg's suggestion for a rehearing en banc, the D.C. Circuit issued four separate opinions, including one by Bork (again joined by Scalia), who wrote that "no principle had been articulated [by the Supreme Court] that enabled us to determine whether appellant's case fell within or without that principle."[19]

In 1986 President Reagan considered nominating Bork to the Supreme Court after Chief Justice Burger retired. Reagan ultimately chose Rehnquist for chief justice and Bork's D.C. Circuit colleague, Judge Antonin Scalia, as a new associate justice.

U.S. Supreme Court nomination

Bork (right) with President Ronald Reagan, 1987

President Reagan nominated Bork for associate justice of the Supreme Court on July 1, 1987, to replace retiring Associate Justice Lewis Powell. A hotly contested United States Senate debate over Bork's nomination ensued. Opposition was partly fueled by civil rights and women's rights groups, concerned about Bork's opposition to the authority claimed by the federal government to impose standards of voting fairness upon states (at his confirmation hearings for the position of solicitor general, he supported the rights of Southern states to impose a poll tax),[20] and his stated desire to roll back civil rights decisions of the Warren and Burger courts. Bork is one of only four Supreme Court nominees (along with William Rehnquist, Samuel Alito, and Brett Kavanaugh) to have been opposed by the American Civil Liberties Union.[21] Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy,"[14] most notably, according to critics, for his role in the "Saturday Night Massacre."

Before Supreme Court justice Lewis Powell's expected retirement on June 27, 1987, some Senate Democrats had asked liberal leaders to "form a 'solid phalanx' of opposition" if President Ronald Reagan nominated an "ideological extremist" to replace him, assuming it would tilt the court rightward. Democrats also warned Reagan there would be a fight if Bork were nominated.[22] Nevertheless, Reagan nominated Bork for the seat on July 1, 1987.

To pro-choice rights legal groups, Bork's originalist views and his belief that the Constitution did not contain a general "right to privacy" were viewed as a clear signal that, should he become a justice of the Supreme Court, he would vote to reverse the Court's 1973 decision in Roe v. Wade. Accordingly, a large number of groups mobilized to press for Bork's rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle.

Following Bork's nomination, Senator Ted Kennedy took to the Senate floor with a strong condemnation of him, declaring:

Robert Bork's America 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 the 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 ... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.[23]

Bork responded, "There was not a line in that speech that was accurate."[24] In an obituary of Kennedy, The Economist remarked that Bork may well have been correct, "but it worked."[24] Bork also contended in his best-selling book, The Tempting of America,[25] that the brief prepared for Senator Joe Biden, head of the Senate Judiciary Committee, "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility."[26] Opponents of Bork's nomination found the arguments against him justified claiming that Bork believed the Civil Rights Act was unconstitutional, and he supported poll taxes, literacy tests for voting, mandated school prayer, and sterilization as a requirement for a job, while opposing free speech rights for non-political speech and privacy rights for gay conduct.[27]

However, in 1988, an analysis published in The Western Political Quarterly of amicus curiae briefs filed by U.S. Solicitors General during the Warren and Burger Courts found that during Bork's tenure in the position during the Nixon and Ford Administrations (1973–1977), Bork took liberal positions in the aggregate as often as Thurgood Marshall did during the Johnson Administration (1965–1967) and more often than Wade H. McCree did during the Carter Administration (1977–1981), in part because Bork filed briefs in favor of the litigants in civil rights cases 75 percent of the time (contradicting a previous review of his civil rights record published in 1983).[28]

On October 23, 1987, the Senate denied Bork's confirmation, with 42 Senators voting in favor and 58 voting against. Two Democratic senators, David Boren (D-OK) and Ernest Hollings (D-SC), voted in his favor, with 6 Republican senators John Chafee (R-RI), Bob Packwood (R-OR), Arlen Specter (R-PA), Robert Stafford (R-VT), John Warner (R-VA), and Lowell P. Weicker Jr. (R-CT) voting against him.[29]

The vacant court seat Bork was nominated to eventually went to Judge Anthony Kennedy, who was unanimously approved by the Senate, 97–0.[30] Bork, unhappy with his treatment in the nomination process, resigned his appellate court judgeship in 1988.[8]

Later work

Following his failure to be confirmed, Bork resigned his seat on the U.S. Court of Appeals for the D.C. Circuit and was for several years both a professor at George Mason University School of Law and a senior fellow at the American Enterprise Institute for Public Policy Research, a Washington, DC based think tank. He was also a fellow at the Hudson Institute. Bork also consulted for Netscape in the Microsoft litigation. He later served as a visiting professor at the University of Richmond School of Law and was a professor at Ave Maria School of Law in Naples, Florida.[31]

In 2011, Bork worked as a legal adviser for the presidential campaign of Republican Mitt Romney.[32]

Views

Bork is known for his theory that the only way to reconcile the role of the judiciary in the U.S. government against what he terms the "Madisonian" or "counter-majoritarian" dilemma of the judiciary making law without popular approval is for constitutional adjudication to be guided by the framers' original understanding of the United States Constitution. Reiterating that it is a court's task to adjudicate and not to "legislate from the bench," he advocated that judges exercise restraint in deciding cases, emphasizing that the role of the courts is to frame "neutral principles" (a term borrowed from Herbert Wechsler) and not simply ad hoc pronouncements or subjective value judgments. Bork once said, "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else."[33]

Bork built on the influential critiques of the Warren Court authored by Alexander Bickel, who criticized the Supreme Court under Earl Warren, alleging shoddy and inconsistent reasoning, undue activism, and misuse of historical materials. Bork's critique was harder-edged than Bickel's: "We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own."[25] Bork's writings influenced the opinions of judges such as Associate Justice Antonin Scalia and Chief Justice William Rehnquist of the U.S. Supreme Court, and sparked a vigorous debate within legal academia about how to interpret the Constitution.

In The Tempting of America, Bork explained his support for the Supreme Court's desegregation decision in Brown v. Board of Education:

By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases… The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.[25]

In 2003, Bork published Coercing Virtue: The Worldwide Rule Of Judges, an American Enterprise Institute book that includes Bork's philosophical objections to the phenomenon of incorporating international ethical and legal guidelines into the fabric of domestic law. In particular, he focused on problems he sees as inherent in the federal judiciary of three nations, Israel, Canada, and the United States—countries where he believes courts have exceeded their discretionary powers, and have discarded precedent and common law, and in their place substituted their own liberal judgment.[34]

Legacy

Following Bork's death, Antonin Scalia referred to him as "one of the most influential legal scholars of the past 50 years" and "a good man and a loyal citizen." Mike Lee, senator from Utah, called Bork "one of America's greatest jurists and a brilliant legal mind."[35]

He was regarded as a hero to conservatives, who "for decades, decades, Judge Bork was a major architect of the conservative rebuttal to what he considered liberal judicial activism."[36]

A 2008 issue of the Harvard Journal of Law and Public Policy collected essays in tribute to Bork. Authors included Frank H. Easterbrook, George Priest, and Douglas Ginsburg.

Bork is probably best remembered for the contentious Senate confirmation battle that followed his nomination to the US Supreme Court:

The acrimony of that confirmation, which included Sen. Edward Kennedy’s now-infamous description of “Robert Bork’s America” and featured a denunciation by Bill Clinton (a former student of Bork’s from his years of teaching at Yale), has cast a long shadow over subsequent Supreme Court nominations.[6]

"Bork" as a verb

Unfortunately, as a result of that infamous Senate hearing, Robert Bork's legacy most prominently includes the use of his name as a verb. The Oxford English Dictionary has an entry for the verb "to bork" as U.S. political slang, with this definition: "Obstruct (someone, especially a candidate for public office) by systematically defaming or vilifying them."[37]

According to columnist William Safire, the first published use of "bork" as a verb was possibly in The Atlanta Journal-Constitution of August 20, 1987. Safire defines "to bork" by reference "to the way Democrats savaged Ronald Reagan's nominee, the Appeals Court judge Robert H. Bork, the year before."[38]

Perhaps the best-known use of the verb "to bork" occurred in July 1991 at a conference of the National Organization for Women in New York City. Feminist Florynce Kennedy addressed the conference on the importance of defeating the nomination of Clarence Thomas to the U.S. Supreme Court, saying, "We're going to 'bork' him. We're going to kill him politically.[39] Thomas was subsequently confirmed after the most divisive confirmation hearing in Supreme Court history to that point.

Associate Supreme Court Justice Brett Kavanaugh used the term during his own contentious Senate confirmation hearing testimony when he stated that "The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at borking."[40]

Selected writings

  • 1971. Neutral Principles and Some First Amendment Problems Indiana Law Journal 47(1). Retrieved October 12, 2020. This paper has been identified as one of the most cited legal articles of all time.[41]
  • 1978. The Antitrust Paradox. New York: Free Press. ISBN 978-0029044568
  • 1990. The Tempting of America. New York: Free Press. ISBN 978-0684843377
  • 1996. Slouching Towards Gomorrah: Modern Liberalism and American Decline. New York: ReganBooks. ISBN 978-0060573119
  • 2003. Coercing Virtue: The Worldwide Rule of Judges. Washington, DC: American Enterprise Institute Press. ISBN 978-0844741628
  • 2005. A Country I Do Not Recognize: The Legal Assault on American Values. Stanford: Hoover Institution Press. ISBN 978-0817946029
  • 2008. A Time to Speak: Selected Writings and Arguments. Wilmington, DE: ISI Books. ISBN 978-1933859682
  • 2013. Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General. New York: Encounter Books. ISBN 978-1594036811

Notes

  1. ↑ The Americana Annual, 1988 (Grolier, 1989, ISBN 978-0717202195).
  2. ↑ Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (W W Norton & Co Inc, 1989, ISBN 978-0393026900).
  3. ↑ Ethan Bronner, A Conservative Whose Supreme Court Bid Set the Senate Afire The New York Times, December 20, 2012. Retrieved October 15, 2020.
  4. ↑ John R. Vile, Great American Judges (ABC-CLIO, 2003, ISBN 978-1576079898).
  5. ↑ David Beckwith, A Long and Winding Odyssey TIME, September 21, 1987. Retrieved October 15, 2020.
  6. ↑ 6.0 6.1 Sophia Mason, Judge Robert Bork, Conservative Icon and Catholic Convert, R.I.P. National Catholic Register, December 20, 2012. Retrieved October 15, 2020.
  7. ↑ Ethan Bronner, A Conservative Whose Supreme Court Bid Set the Senate Afire The New York Times, December 19, 2012. Retrieved October 15, 2020.
  8. ↑ 8.0 8.1 Al Kamen and Matt Schudel, Judge Robert H. Bork, conservative icon, dies at 85 The Washington Post, December 19, 2012. Retrieved October 15, 2020.
  9. ↑ Special Counsel Investigation C-SPAN, August 11, 1998. Retrieved October 15, 2020.
  10. ↑ Robert Bork, Neutral Principles and Some First Amendment Problems Indiana Law Journal 47(1) (1971). Retrieved October 15, 2020.
  11. ↑ Mark A. Graber, Robert Bork, the original originalist Baltimore Sun, December 24, 2012. Retrieved October 15, 2020.
  12. ↑ Peter M. Gerhart, The Supreme Court and Antitrust Analysis: The (Near) Triumph of the Chicago School The University of Chicago Faculty Publications 602 (1983): 319–349. Retrieved October 15, 2020.
  13. ↑ James T. Wooten Nixon's Men: All Work and No Fills The New York Times, March 21, 1973. Retrieved October 16, 2020.
  14. ↑ 14.0 14.1 Kenneth B. Noble, New Views Emerge of Bork's Role in Watergate Dismissals The New York Times, July 26, 1987. Retrieved October 16, 2020.
  15. ↑ 15.0 15.1 Bork: Nixon offered next high court vacancy in '73 Associated Press, February 26, 2013. Retrieved October 16, 2020.
  16. ↑ William Bart Saxbe The United States Department of Justice. Retrieved October 16, 2020.
  17. ↑ PN891 — Robert H. Bork — The Judiciary Congress.gov. Retrieved October 16, 2020.
  18. ↑ 741 F. 2d 1388 - Dronenburg v. Zech United States Court of Appeals, District of Columbia Circuit, August 17, 1984. Retrieved October 16, 2020.
  19. ↑ 746 F. 2d 1579 - Dronenburg v. Zech United States Court of Appeals, District of Columbia Circuit, November 15, 1984. Retrieved October 16, 2020.
  20. ↑ John H. Buchanan and Arthur J. Kropp, Bork Hearings Showed How Democracy Works; A Very Small Poll Tax The New York Times, October 23, 1987. Retrieved October 16, 2020.
  21. ↑ Burgess Everett, ACLU spending more than $1M to oppose Kavanaugh Politico, October 1, 2018. Retrieved October 16, 2020.
  22. ↑ Manuel Miranda, The Original Borking The Wall Street Journal, August 24, 2005. Retrieved October 16, 2020.
  23. ↑ Norman Vieira and Leonard Gross, Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations (Southern Illinois University Press, 1998, ISBN 978-0809322046).
  24. ↑ 24.0 24.1 A hell of a senator The Economist, August 29, 2009. Retrieved October 16, 2020.
  25. ↑ 25.0 25.1 25.2 Robert H. Bork, The Tempting of America (Free Press, 1997, ISBN 978-0684843377).
  26. ↑ Damon Root, Straight Talk Slowdown Reason, September 9, 2008. Retrieved October 16, 2020.
  27. ↑ Jane Coaston, "Borking," explained: why a failed Supreme Court nomination in 1987 matters Vox, September 27, 2018. Retrieved October 16, 2020.
  28. ↑ Jeffrey A. Segal, Amicus Curiae Briefs by the Solicitor General during the Warren and Burger Courts: A Research Note Western Political Quarterly 41(1) (March 1, 1988): 135-144. Retrieved October 16, 2020.
  29. ↑ Senate's Roll-Call On the Bork Vote The New York Times, October 24, 1987. Retrieved October 16, 2020.
  30. ↑ Linda Greenhouse, Becoming Justice Blackmun (Times Books, 2006, ISBN 978-0805080575).
  31. ↑ History Timeline Ave Maria School of Law.
  32. ↑ John Light, Romney’s Divisive Judicial Advisor: Robert Bork Moyers on Democracy, September 14, 2012. Retrieved October 16, 2020.
  33. ↑ Dennis J. Goldford, The American Constitution and the Debate Over Originalism (Cambridge University Press, 2005, ISBN 978-0521845588).
  34. ↑ Robert H. Bork, Coercing Virtue: The Worldwide Rule Of Judges (Aei Press, 2003, ISBN 978-0844741628).
  35. ↑ Bill Mears, Robert Bork, known for contentious Supreme Court nomination, dies at 85 CNN, December 19, 2012. Retrieved October 15, 2020.
  36. ↑ Mark Memmott, Robert Bork, Who Was Turned Down For Supreme Court, Dies NPR, December 19, 2020. Retrieved October 15, 2020.
  37. ↑ "bork" Lexico. Retrieved October 14, 2020.
  38. ↑ William Safire, The Way We Live Now: 5-27-01: On Language; Judge Fights The New York Times Magazine, May 27, 2001. Retrieved October 14, 2020.
  39. ↑ Steve Barrett, Herman Cain faced with the Clarence Thomas treatment Chattanooga Times Free Press, November 6, 2011. Retrieved October 14, 2020.
  40. ↑ Kavanaugh hearing: Transcript The Washington Post, September 27, 2018. Retrieved October 14, 2020.
  41. ↑ Fred R. Shapiro and Michelle Pearse, The Most-Cited Law Review Articles of All Time Michigan Law Review 110(8) (2012): 1483–1520. Retrieved October 12, 2020.

References
ISBN links support NWE through referral fees

  • Bork, Robert H. The Tempting of America. Free Press, 1997. ISBN 978-0684843377
  • Bork, Robert H. Coercing Virtue: The Worldwide Rule Of Judges. Aei Press, 2003. ISBN 978-0844741628
  • Bronner, Ethan. Battle for Justice: How the Bork Nomination Shook America. W W Norton & Co Inc, 1989. ISBN 978-0393026900
  • Goldford, Dennis J. The American Constitution and the Debate Over Originalism. Cambridge University Press, 2005. ISBN 978-0521845588
  • Greenhouse, Linda. Becoming Justice Blackmun. Times Books, 2006. ISBN 978-0805080575
  • Staff. The Americana Annual, 1988. Grolier, 1989. ISBN 978-0717202195
  • Vieira, Norman, and Leonard Gross. Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations. Southern Illinois University Press, 1998. ISBN 978-0809322046
  • Vile, John R. Great American Judges. ABC-CLIO, 2003. ISBN 978-1576079898

External links

All links retrieved December 14, 2022.


Legal offices
Preceded by:
Erwin Griswold 		Solicitor General of the United States
1973–1977 		Succeeded by: Daniel Mortimer Friedman
Acting
Preceded by:
Elliot Richardson 		United States Attorney General
Acting
1973 		Succeeded by: William B. Saxbe
Preceded by:
Carl E. McGowan 		Judge of the United States Court of Appeals for the District of Columbia Circuit
1982–1988 		Succeeded by: Clarence Thomas

Credits

New World Encyclopedia writers and editors rewrote and completed the Wikipedia article in accordance with New World Encyclopedia standards. This article abides by terms of the Creative Commons CC-by-sa 3.0 License (CC-by-sa), which may be used and disseminated with proper attribution. Credit is due under the terms of this license that can reference both the New World Encyclopedia contributors and the selfless volunteer contributors of the Wikimedia Foundation. To cite this article click here for a list of acceptable citing formats.The history of earlier contributions by wikipedians is accessible to researchers here:

The history of this article since it was imported to New World Encyclopedia:

Note: Some restrictions may apply to use of individual images which are separately licensed.

Retrieved from https://www.newworldencyclopedia.org/p/index.php?title=Robert_Bork&oldid=1108797

Content is available under Creative Commons Attribution/Share-Alike License; additional terms may apply. See Terms of Use for details.
Copyright Logo
Powered by MediaWiki