Robert Bork, polarizing figure, dies at 85

United Press International
Former Supreme Court nominee Robert Bork speaks at the conference on the Judicial Nomination Process at the Hudson Institute in Washington, September 1, 2005. (UPI Photo/Yuri Gripas).
Former Supreme Court nominee Robert Bork speaks at the conference on the Judicial Nomination Process at the Hudson Institute in Washington, September 1, 2005. (UPI Photo/Yuri Gripas). | License Photo

Former Supreme Court nominee Robert Bork died of heart disease early Wednesday at a hospital in Arlington, Va., his family confirmed. He was 85.

Bork's nomination to the Supreme Court by President Ronald Reagan in 1987 ignited Washington's most heated nomination debate in decades and ended Oct. 22 when the Senate rejected the bearded judge with a resounding vote of 58-42, the biggest margin of defeat in the history of the court.


The rejection ended a heated and protracted battle over the conservative jurist's interpretation of the Constitution and began with his nomination by Reagan on July 1.

The former Yale Law School professor first gained public attention in October 1973 when, as U.S. solicitor general, he followed President Richard Nixon's order to fire Watergate special prosecutor Archibald Cox.

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Superiors U.S. Attorney General Elliot Richardson and Richardson's top deputy, Deputy Attorney General William Ruckelshaus, resigned rather than carry out Nixon's order.

Several tributes were posted Wednesday on the website of the American Enterprise Institute, a conservative think tank where Bork worked and wrote following his resignation from a federal appeals court in Washington in 1988.


One was written by John Bolton, a senior AEI fellow who was taught antitrust law by Bork at Yale Law School in the early 1970s. Bolton is himself a controversial figure. Named U.S. ambassador to the United Nations in a congressional recess appointment by President George W. Bush in 2005, he resigned at the end of his recess appointment because of opposition to his confirmation in the U.S. Senate.

Presidents use recess appointments, made when the U.S. Senate is not in session and only lasting through the chamber's next session, usually because of overwhelming political opposition.

"Bob was central to the development and growth of the law-and-economics movement," Bolton said, "and Bob's book, 'The Antitrust Paradox,' remains a towering intellectual achievement, dwarfing everything else in the field."

Bolton also defended Bork in what came to be called "The Saturday Night Massacre."

"One of Bob's most important services to our country is also one of the most misunderstood, during the 'Saturday Night Massacre.' When Nixon gave Attorney General Elliot Richardson the order to fire Watergate Special Prosecutor Archibald Cox, Richardson resigned as he had committed to do in his Senate confirmation hearings if the White House ever tried to interfere with Cox's investigation. Deputy AG William Ruckelshaus also resigned, as he had similarly pledged to do.


"By virtue of these resignations, Bork, the third-ranking official at the Department of Justice, became acting attorney general," Bolton said. "Although he had been confirmed before the Watergate affair had become an issue, and never been asked to make such a pledge, Bork told Richardson and Ruckelshaus that he thought he should also resign.

"They urged him not to, because then the entire top leadership of the department might have followed suit, and the country plunged into a constitutional crisis the likes of which we had never seen. Richardson and Ruckelshaus urged him to fire Cox to preserve the department's legitimacy.

"Said Richardson: 'You've got the gun now, Bob. It's your duty to pull the trigger.' Bork did fire Cox, and paid for it the rest of his life," Bolton said.

Of Bork's rejection by the U.S. Senate in 1987 during his nomination to the U.S. Supreme Court, Bolton called it "the most shameful act in the Senate's long history of considering presidential nominations. ... Many of his opponents in the Senate engaged in straightforward character assassination."

Summing up, Bolton said Bork "never regretted the consequences of standing by his philosophical principles. Why else have them?"


Bork forged a distinguished career as a scholar and a jurist on the U.S. Circuit Court of Appeals for the District of Columbia from 1982 to 1988.

Reagan had hoped Bork would fill the vacancy left by the abrupt retirement of Justice Lewis Powell June 26, 1987.

Usually courteous and sometimes curt, Bork contended courts had strayed too far from the literal meaning of the Constitution and judges should interpret the law, not make it.

Although he believed court precedents should be respected, he spoke against Supreme Court rulings recognizing a woman's right to an abortion and upholding a couple's right to buy contraceptives. Such matters, he said, should be dealt with by legislatures, not the courts.

Those views in the 1970s earned him several positions with the Nixon administration. When Nixon sought out prominent scholars to help formulate and defend his anti-busing proposals, Bork came forward and was named a White House consultant.

When Nixon revamped the Justice Department in 1973, Bork became solicitor general, No. 3 in the department behind Richardson and Ruckelshaus.

In October of that year, it fell to Bork to fire Cox when both Richardson and Ruckelshaus refused to take part in the Saturday Night Massacre.


Bork reportedly was willing to carry out the president's instructions because he believed Cox, by insisting on access to the White House Watergate tape recordings, had exceeded the mandate given him when he was appointed special prosecutor.

Afterwards, Bork said he thought about resigning because "I did not want to be perceived as a man who did the president's bidding to save my job." At Richardson's urging, he stayed on as acting attorney general, but was perceived by many as a hatchet man.

Bork was born in Pittsburgh March 1, 1927, the son of a steel mill worker. As a high school junior in Pittsburgh, he was editor in chief of the school newspaper. At 18, Bork joined the Marine Corps.

Bork got his undergraduate and law degrees in 1948 and 1953 at the University of Chicago where he was one of many war veterans enrolling in the college. As an undergraduate, he was a "conventional New Deal liberal."

"I went to law school wanting to be a labor lawyer," Bork said. While there, he came under the influence of conservative thinkers and, in the words of a classmate, persuaded himself he was a "classical conservative."


He entered private practice immediately after graduation and spent seven years at a prestigious Chicago firm.

Bork joined the Yale faculty in 1962, where one of students was Bill Clinton, and stayed there until he became solicitor general. He was an adjunct scholar at the American Enterprise Institute in Washington from 1977 until 1982 when he was nominated by Reagan for the appeals court.

At the appeals court, Bork was an apostle of judicial restraint and said he believed judges should be guided by the meaning intended by the framers of the Constitution.

In 1983, Bork wrote an opinion upholding the discharge of a Navy petty officer for homosexual conduct. Nowhere in the "text, structure or history of the Constitution" is there any "right to privacy" that would protect homosexual behavior, he concluded.

During a 1984 lecture, Bork tried to explain why he believed judges should exercise restraint.

"In a constitutional democracy, the moral content of the law must be given by the morality of the framer or the legislator, never by the morality of the judge," he said. "The sole task of the latter ... is to translate the framer's or the legislator's morality into a rule to govern unforeseen circumstances."


"That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality of the jurist," Bork said.

Bork married Claire Davidson in 1952 and the couple had three children: Robert Jr., Charles and Ellen. Mrs. Bork died of cancer and Bork married Mary Ellen Pohl in 1982.

The defeat of Bork's Supreme Court nomination capped a bitter constitutional struggle over the philosophical direction of the nation's highest court.

Culminating three months of heated debate on the nature of the 200-year-old Constitution, six Republicans joined 52 Democrats to deny confirmation; 40 Republicans and two Democrats voted for Bork. Democrats held a 54-46 majority in the Senate.

Although his defeat was a foregone conclusion after a majority of the Senate had declared opposition, Bork himself demanded the vote with its inevitable result because, he said on Oct. 9, the independence of the federal judiciary was at stake.

Even the timing of the vote was at Bork's behest. After two days of floor debate, some Republicans still wanted to pursue the issue to make the case for Bork and vilify his critics. But Bork asked that the discussion be cut off and a vote taken.


Reagan declared his next nominee would share Bork's "belief in judicial restraint."

In a post-vote statement, Bork said: "Now I simply wish to express my deep gratitude to President Reagan, to the senators who supported me so magnificently, to all of those in and out of government who assisted me and to the many Americans I will never meet who expressed their support so warmly."

Bork was the 28th high court nominee in two centuries to be denied confirmation and only the sixth in the 20th century to be defeated. The most recently rejected candidates were Clement Haynsworth in 1969 and G. Harrold Carswell in 1970, both nominated by President Richard Nixon.

Leaders of the anti-Bork forces rejoiced.

"What future generations will remember about the debate is not that the Senate rejected a justice but that the American people reached a consensus about what justice is," said Arthur Kropp, executive director of the liberal People for the American Way.

Later, the Senate refused to consider a resolution praising Bork and charging an "unprecedented negative campaign" was waged against him.

Supporters lauded Bork as an outstanding jurist. Sen. Strom Thurmond, R-S.C., said: "Contrary to the smears, Judge Bork has not been a racist, a sexist, a sterilizer or a bedroom spy."


But Vice President Joseph Biden, then chairman of the Senate Judiciary Committee, said: "This has been a great debate, a debate about a fundamental principle: How does one interpret the liberty clause of the Constitution?"

Some GOP senators said Reagan had not reckoned the size of the opposition to Bork and did too little too late to save the nominee. Reagan's next nominee, Judge Anthony Kennedy, was unanimously approved by the Senate, 97-0.

In 25 years of legal scholarship and judicial decisions, Bork honed a reputation as one of the foremost thinkers in the conservative school of "original intent" which believes rights must be expressly outlined in the Constitution for them to exist.

As a result, virtually from the day he was nominated, Bork was under intense criticism from civil rights, women's and minority groups that claimed he could roll back 30 years of advances in individual liberties granted by the Supreme Court.

Anti-Bork forces used the judge's own writings and speeches to demonstrate he was hostile to the court's rulings on civil rights.

Those themes carried over into 12 days of confirmation hearings before the Senate Judiciary Committee in September. Bork himself was the first of the 110 witnesses, and for five days he was subjected to often tough questioning.


Before the panel, he modified several of his more controversial positions but stuck by others, such as his belief no general right to privacy can be found in the Constitution.

He also again criticized as not constitutionally based the underlying reasoning for many high court decisions on civil liberties, but he said he would abide by most of these decisions as being settled law.

Witnesses against Bork particularly black leaders such as former Rep. Barbara Jordan, D-Texas, Atlanta Mayor Andrew Young and Duke University historian John Hope Franklin argued if Bork had been on the high court during the 30 years of landmark civil rights decisions, there would still be segregated buses and lunch counters in the South.

Those and other witnesses said black and white Southerners feared a Bork confirmation would signal a return to those days. With many Southern Democrats highly dependent on black votes for their Senate seats, civil rights groups lobbied successfully to get most of them to vote no.

Other anti-Bork witnesses assailed his privacy views, and 40 percent of the nation's law professors signed a letter opposing him as not being in the mainstream of contemporary judicial thought.


Pro-Bork witnesses, including former President Gerald Ford, former Chief Justice Warren Burger and seven former attorneys general, argued Bork was one of the most qualified nominees in the century and a brilliant legal scholar whose views were well within the judicial mainstream.

The confirmation battle was nearly sealed when on Oct. 6 the Judiciary Committee voted 9-5 to recommend the Senate reject the nomination.

For the next three days, pressure mounted on Bork to withdraw as senator after senator declared in opposition and White House and Justice Department aides said withdrawal was imminent.

But after several days of meetings and phone calls with Reagan, other White House and administration officials, sympathetic senators and his family, Bork announced Oct. 9 he wanted the issue to go to the Senate floor.

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