Robert Bork

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.[3] His father was of German and Irish ancestry, while his mother was of Pennsylvania Dutch (German) descent.[4] He was married to Claire Davidson from 1952 until 1980, when she died of cancer. They had a daughter, Ellen, and two sons, Robert and Charles. In 1982, he married Mary Ellen Pohl,[5] a Catholic religious sister turned activist.[6]

Bork attended the Hotchkiss School in Lakeville, Connecticut[7] and earned B.A. and J.D. degrees from the University of Chicago. He pursued his bachelor's degree and 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 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[8] 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.[9][10]

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."[11]

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, 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 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.

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.[12] 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 they are supposed to be interpreting."[12]

At Yale he was best known for writing The Antitrust Paradox, a book in which 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—with those of Richard Posner and other law and economics and Chicago School thinkers—were influential in causing a shift in the Supreme Court's approach to antitrust laws since the 1970s.[13][14]

Bork greeting President Gerald Ford in 1975

Bork served as solicitor general in the U.S. Department of Justice from March 1973[15] 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 secretary of labor in the Clinton administration.

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,[19] and received his commission on February 9, 1982.

One of Bork’s opinions while on the D.C. Circuit was Dronenburg v. Zech, 741 F.2d 1388,[20] 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.[20]

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."[21]

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 Scalia, as the new associate justice.

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.. 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),[22] 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.[23][24] Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy,"[16] 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.[25] Democrats also warned Reagan there would be a fight if Bork were nominated.[26] 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:

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.[27][28]

Bork responded, "There was not a line in that speech that was accurate."[29] In an obituary of Kennedy, The Economist remarked that Bork may well have been correct, "but it worked."[29] Bork also contended in his best-selling[30] book, The Tempting of America, 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."[31] 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.[32] 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).[33][34]

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.[35]

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, Ruthless People, and 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.[36] 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.[37][38]

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.

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, while six 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) – voted against Bork.[39] His defeat in the Senate was the worst against any Supreme Court nominee since George Washington Woodward was defeated 20—29 in 1845, and the third-worst on record.

The vacant court seat Bork was nominated to eventually went to Judge Anthony Kennedy, who was unanimously approved by the Senate, 97—0.[40] Bork, unhappy with his treatment in the nomination process, resigned his appellate court judgeship in 1988.[41]

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, 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.[46] In 2011, Bork worked as a legal adviser for the presidential campaign of Republican Mitt Romney.[47]

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, a fact used pejoratively behind the scenes by Southern Democrats when speaking to their evangelical constituents during his Supreme Court nomination process.

In The Tempting of America, p. 82, 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.

Bork opposed the Civil Rights Act of 1964, saying that the provisions within the Act which prohibited racial discrimination by public accommodations were based on a principle of "unsurpassed ugliness".[48][49] 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.[50] Bork said the decision was "utterly specious," "unprincipled" and "intellectually empty."[50] 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."[51] 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 (1973-77), Bork took liberal positions in the aggregate as often as Thurgood Marshall did during the Johnson Administration (1965-67) and more often than Wade H. McCree did during the 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).[33][34]

In 1998 he reviewed High Crimes and Misdemeanors: The Case Against Bill Clinton, conservative pundit Ann Coulter’s book on impeaching Clinton, pointing out that "'High crimes and misdemeanors' are not limited to actions that are crimes under federal law."[52]

In 1999, Bork wrote an essay about Thomas More and attacked jury nullification as a "pernicious practice".[53] Bork once quoted More in summarizing his judicial philosophy.[54] 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 Constitution to allow Congressional super-majorities to override Supreme Court decisions, similar to the Canadian 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,[55] Bork denounced what he called the "NRA view" of the Second Amendment, something he described as the "belief that the constitution guarantees a right to Teflon-coated bullets." Instead, he argued that the Second Amendment merely guarantees a right to participate in a government militia.[56]

Bork converted to Catholicism in 2003.[57]

In October 2005, Bork publicly criticized the nomination of Harriet Miers to the Supreme Court, saying her nomination was "a disaster on every level."[58][59]

On June 6, 2007, Bork filed suit in federal court in New York City against the 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.)[60] 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.[61] In May 2008, Bork and the Yale Club reached a confidential, out-of-court settlement.[62]

On June 7, 2007, Bork with several others authored an amicus brief on behalf of 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.[63]

On December 15, 2007, Bork endorsed Mitt Romney for president. He repeated this endorsement on August 2, 2011, during Romney’s second campaign for the White House.

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 died of complications from heart disease at the Virginia Hospital Center in Arlington, Virginia, on December 19, 2012.[64][41][65] 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, senator from Utah, called Bork "one of America's greatest jurists and a brilliant legal mind".[66] He is interred at Fairfax Memorial Park.

• Bork, Robert H. (1971). "Neutral Principles and Some First Amendment Problems". Ind. L. J. 47: 1. This paper has been identified as one of the most cited legal articles of all time.[67]
• — (1978). The Antitrust Paradox. New York: Free Press. ISBN 0-465-00369-9.
• — (1990). The Tempting of America. New York: Free Press. ISBN 0-684-84337-4.
• — (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 0-06-039163-4.
• — (2003). Coercing Virtue: The Worldwide Rule of Judges. Washington, DC: American Enterprise Institute Press. ISBN 0-8447-4162-0.
• — (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, 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 978-1-59403681-1

• Aaron Director
• Originalism
• Ronald Reagan Supreme Court candidates
• Swiftboating
• Unsuccessful nominations to the Supreme Court of the United States

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• The Legacy of Robert H. Bork, Retro Report
• Robert Heron Bork at the Biographical Directory of Federal Judges, a public domain publication of the Federal Judicial Center.
• A Conversation with Judge Robert H. Bork – Event Video, Federalist Society, 2007-06-26
• Appearances on C-SPAN
  • Booknotes interview with Bork on Slouching Toward Gomorrah, December 4, 1996.
• Congressional Record: Floor Vote on Bork Nomination
• Think Tank Biography: Robert Bork
• Bork, Robert H. (1996) Our Judicial Oligarchy . 1996 First Things November.
• Robert Bork at IMDb
• Robert Bork at Find a Grave