Robert H. Bork, conservative judicial icon, dies at 85
By Al Kamen and Matt Schudel,
Robert H. Bork, the conservative jurist who fired Watergate special prosecutor Archibald Cox during the “Saturday Night Massacre” in 1973 and whose failed nomination to the U.S. Supreme Court in 1987 sparked an enduring political schism over judicial nominations, died Dec. 19 at Virginia Hospital Center in Arlington County of complications from heart disease. He was 85.
The death was confirmed by Judge Bork’s daughter-in-law, Diana Culp Bork.
For decades, Judge Bork was a major architect of the conservative rebuttal to what he considered liberal judicial activism. He criticized civil rights legislation and rulings in cases involving the “one man, one vote” principle and the constitutional right to privacy.
His unrelenting calls for judicial restraint and his opposition to “imperialistic” liberal judges, who he said read their values into the Constitution, made him an iconic figure in conservative legal circles.
In his writings and in debates on legal doctrine, the burly, bearded, chain-smoking ex-Marine was sharply confrontational. But friends and enemies alike found him a man of great charm, compassion and intellect, with a wit so sharp a close friend once called it dangerous.
A 1987 Time magazine article reported that Judge Bork had a disarming presence, even with his political opponents. When one Justice Department official said that a decision would be made “over my dead body,” Judge Bork is said to have quipped, “To some of us, that sounded like the scenic route.”
A Supreme Court war
Judge Bork was passed over for an opening on the Supreme Court in 1986, when President Ronald Reagan nominated Antonin Scalia, who was confirmed 98 to 0 by the Republican-controlled Senate.
After the retirement of Justice Lewis F. Powell Jr. in 1987, liberals feared that Reagan might appoint a judge who would tilt the court toward the right. Judge Bork’s nomination went to a Senate controlled by Democrats, with then-Sen. Joseph R. Biden Jr. (D-Del.) as chairman of the Judiciary Committee.
The White House tried to position Judge Bork as a mainstream conservative, and columnist George Will declared him “the most intellectually distinguished nominee since Felix Frankfurter” in 1939.
But liberals vowed to defeat Judge Bork and waged an all-out campaign, which included TV commercials featuring actor Gregory Peck, to portray him as an unreconstructed extremist. In five days of extensive hearings before the committee, Judge Bork’s detractors pointed to his earlier writings, in which he criticized Roe v. Wade — the high court’s assertion of a constitutional right to privacy that extended to a woman’s decision to have an abortion — affirmative action and aspects of several civil rights laws.
“Robert Bork’s America,” Sen. Edward M. Kennedy (D-Mass.) declared on the upper chamber’s floor, “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.”
During the nationally televised hearings, Judge Bork, ever the professor and debater, seemed awkward and combative, unable to exhibit the deference demanded by the Senate. He displayed little of the charm and warmth that he was known for in private.
Judge Bork’s supporters said that questions over his fitness for the high court crossed the line and became personal attacks — to a degree considered unprecedented in a judicial nomination.
“They turned him into an absolute gargoyle, into a beast,” Sen. Alan K. Simpson (R-Wyo.) said.
The nomination was defeated 58 to 42. For Judge Bork and his conservative supporters, it was a bitter defeat — and one that would not be forgotten.
Afterward, he denounced the process, saying that “the tactics and techniques of national political campaigns have been unleashed on the process of confirming judges. That is not simply disturbing. It is dangerous.”
He became a popular public speaker, often attacking what he called “ultraliberals, radicals and leftists.”
The bare-knuckle tactics used by Democrats during Judge Bork’s nomination — probing the political views and legal philosophy of a judicial nominee — were adopted by both parties in a practice that became known as “borking.”
Since then, judicial nominees have come under much greater scrutiny and have seldom sailed through the Senate without dissent, as they often had in the days before Judge Bork.
Rise of a conservative
Robert Heron Bork, the only son of a purchasing agent for a steel company, was born in Pittsburgh on March 1, 1927. After attending schools in Pittsburgh, he spent his senior year at the private Hotchkiss School in Lakeville, Conn., where he won an intramural boxing championship.
He enlisted in the Marine Corps in 1944 but did not see action in World War II. After the war, he enrolled at the University of Chicago, where he received a bachelor’s degree in 1948 and was elected to the Phi Beta Kappa honor society.
He interrupted his legal studies after two years to rejoin the Marines and served as an officer during the Korean War. He returned to law school and graduated in 1953.
Along the way, Judge Bork discarded the socialist beliefs of his youth and begun a political transformation toward the right, strongly influenced by free-market, libertarian economic principles championed by several University of Chicago economists.
In 1962, he left a promising practice as an antitrust lawyer in Chicago and moved with his wife , the former Claire Davidson, and three young children to New Haven, Conn. He spent the next 19 years teaching antitrust and constitutional law at Yale University, where his students included Bill and Hillary Rodham Clinton, future labor secretary Robert Reich, future two-time California governor Jerry Brown, future U.S. senator John Danforth (R-Mo.) and future law professor Anita Hill, who presented controversial testimony opposing the Supreme Court nomination of Clarence Thomas in 1991.
At Yale, Judge Bork quickly became the conservative movement’s Ivy League voice. He wrote a critique of the constitutionality of the 1964 Civil Rights Act for Sen. Barry Goldwater and became a member of Scholars for Goldwater when the Arizona Republican became his party’s presidential nominee in 1964.
Judge Bork wrote an influential law journal article in 1971 outlining a school of legal thought later known as “intentionalism,” arguing that judges should confine themselves to the “original intent” of the framers of the Constitution in determining what actions should be protected by the law. He also maintained that only “political speech” could be protected by the First Amendment.
Throughout his career, Judge Bork repeatedly criticized a 1965 Supreme Court decision, Griswold v. Connecticut, in which a state law prohibiting married couples from using contraceptives was struck down. The court ruled that the state law violated a constitutional right to privacy.
Judge Bork maintained that the Constitution held no such provision. As a test of the principle, the Washington City Paper published a list of movies that Judge Bork had rented for private viewing.
Nixon and Watergate
A member of Academics for Nixon, Judge Bork advised President Richard M. Nixon on legislation to limit busing in school desegregation cases. He later wrote a letter to the New York Times defending Nixon’s Vietnam policy and hailing the president as “a leader who attempts to cope intelligently and persistently with reality.”
In December 1972, Judge Bork became the Nixon administration’s solicitor general, the lawyer who represents the government before the Supreme Court. Five weeks into the job, he was summoned to the White House and was asked to become Nixon’s chief defense attorney during the Watergate investigation. He declined.
When Archibald Cox, a Justice Department special prosecutor investigating the Watergate scandal, refused to comply with Nixon’s demand that he desist from obtaining White House tapes and other documents, Nixon called for the office to be abolished.
During a televised news conference, Cox refused to back down and said he would continue to seek the Nixon tapes and other records. Nixon considered Cox’s actions a breach of loyalty and demanded that he be fired.
On Oct. 20, 1973, Attorney General Elliot L. Richardson, who had pledged not to dismiss Cox, resigned, as did his deputy, William D. Ruckelshaus. As solicitor general — third in command at the Justice Department — Judge Bork carried out Nixon’s request.
“I think Cox had to be fired, but not because he was behaving improperly,” Judge Bork said in a 2008 oral history interview with C-SPAN. “You cannot have a subordinate officer facing the president down on national television.”
The resignations of Richardson and Ruckelshaus and the firing of Cox became known collectively as the “Saturday Night Massacre.”
Judge Bork at first contemplated submitting his resignation after dismissing Cox, but he reconsidered.
“If I had resigned, it would look like I was admitting something was wrong,” he told C-SPAN.
In a statement made at the time he was fired, Cox said, “Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people.”
Judge Bork was acting attorney general for two months and continued as solicitor general throughout the presidency of Gerald R. Ford. He returned in 1977 to Yale, where he led the opposition to a proposal that Yale bar recruiters from law firms that discriminated against homosexuals.
In a letter to the faculty, he wrote that “homosexuality is obviously not an unchangeable condition like race or gender” and that homosexual behavior, it is relevant to observe, “is criminal in many states.” His arguments did not persuade the majority of the faculty.
Retiring from the bench
Soon after the death of his wife, Claire Davidson Bork, in 1980, Judge Bork left Yale to join a Washington law firm. Within months, Reagan appointed him to the U.S. Court of Appeals for the D.C. Circuit.
There, he established himself, with some exceptions, as a conservative jurist, hewing to the doctrines of “original intent” and limited judicial interference.
One year after Judge Bork’s Supreme Court nomination in 1987, he left the bench and became affiliated with conservative think tanks, including the American Enterprise Institute and the Hudson Institute. This past spring, he was named chairman of Republican presidential hopeful Mitt Romney’s Justice Advisory Committee.
Judge Bork’s frequent writings and lectures attacking the Warren Court of the 1950s and 1960s and later liberal decisions made him a revered figure among conservatives. His best-selling books included “The Tempting of America: The Political Seduction of the Law” (1990), “Slouching Towards Gomorrah: Modern Liberalism and American Decline” (1996) and “Coercing Virtue: The Worldwide Rule of Judges” (2003).
Survivors include his second wife, Mary Ellen Pohl of McLean; three children from his first marriage, Robert H. Bork Jr. of McLean, Charles Bork of Seattle and Ellen Bork of Washington; and two grandchildren.
Late in life, after he had married his second wife, a former Catholic nun, Judge Bork converted to Catholicism.
“There is an advantage in waiting until you’re 76 to be baptized, because you’re forgiven all of your prior sins,” he said in an interview with the National Catholic Register. “Plus, at that age you’re not likely to commit any really interesting or serious sins.”