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Former Solicitor General Robert Bork Dies

Wednesday, 19 Dec 2012 09:45 AM

 

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Robert Bork, the U.S. judge and legal scholar whose nomination to the Supreme Court by President Ronald Reagan set off a battle for the judiciary that lived on long after the U.S. Senate rejected him, has died. He was 85.

He died this morning at Virginia Medical Center in Arlington, Virignia, said his son, Robert Jr. The cause was heart disease.

Bork’s defeat in the Senate by a roll call of 58 to 42 -- the most votes ever against a Supreme Court nominee -- established new rules for how prospective justices get selected and vetted. The word “borking” entered the political lexicon, meaning, according to the Oxford English Dictionary, trying to block candidates for public office “by systematically defaming or vilifying them.”

“My name became a verb,” Bork told CNN in 2005, “and I regard that as one form of immortality.”

In nationally televised hearings, the Senate Judiciary Committee delved into Bork’s ideology, not just his legal qualifications or competence. His past commentary on hot-button issues became fodder for his interrogators, establishing that long paper trails can be liabilities for judicial nominees.

Advocacy groups adopted the tactics of political campaigns, paying for print and broadcast advertising as part of what Ethan Bronner, in “Battle for Justice: How the Bork Nomination Shook America” (1989), called an “unprecedented lobbying campaign against a Supreme Court nominee.”

Battle lines formed swiftly after Reagan, on July 1, 1987, announced his selection of Bork, a judge on the Court of Appeals for the District of Columbia Circuit, to succeed Lewis F. Powell Jr., who was retiring.

Before the confirmation hearings even began, Senator Joseph Biden of Delaware, the Judiciary Committee chairman who was then seeking the 1988 Democratic presidential nomination, declared that he would lead the fight against Bork.

“I don’t have an open mind,” said Biden, the future vice president. “The reason I don’t is that I know this man.”

In a 1963 article for New Republic magazine, Bork had criticized civil-rights legislation that barred restaurants, hotels and other public accommodations from discriminating on the basis of race. While the “ugliness” of racism was clear, he wrote, “having the state coerce you into more righteous paths” is “a principle of unsurpassed ugliness.”

On abortion, he had testified at a 1981 Senate hearing that Roe v. Wade was “an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority.” He also had criticized the 1965 Supreme Court decision establishing a constitutional right to privacy that, among other things, permitted married couples to purchase contraception.

As the confirmation hearings began, Senator Edward Kennedy, a Democrat, said Bork “is publicly itching to overrule many of the great decisions of the Supreme Court that seek to fulfill the promise of justice for all Americans.”

Bork presented a softer side, saying he had “great respect for precedent” and insisting he didn’t know how he would vote if a challenge to Roe v. Wade came before him. In an hour-long showdown on Bork’s final day as a witness, Republican Arlen Specter of Pennsylvania, a former district attorney, challenged his contention that the Supreme Court must rely on the “original intent” of the framers of the Constitution.

Advocacy groups representing blacks, women and labor mobilized to defeat Bork. To join in, the American Civil Liberties Union dropped a 51-year-old neutrality policy on judicial and executive-branch nominations. Actor Gregory Peck narrated an anti-Bork television commercial by People for the American Way, a group founded by “All in the Family” producer Norman Lear.

On the pro-Bork side, Jerry Falwell’s Moral Majority delivered more than 20,000 postcards to the Judiciary Committee supporting confirmation, and Concerned Women for America ran radio ads in Washington and print ads in the home states of select senators.

On Oct. 6, the Senate committee voted 9-5 against recommending confirmation. All eight Democrats, plus Specter, voted against Bork. Facing pressure to withdraw before the full Senate voted, Bork vowed to fight on.

“The tactics and techniques of national political campaigns have been unleashed on the process of confirming judges,” he said after meeting with Reagan at the White House. “That is not simply disturbing, it is dangerous.”

A Washington Post editorial opposing Bork’s confirmation nevertheless said the campaign against him “did not resemble an argument so much as a lynching.”

The full Senate’s 58-42 defeat of Bork on Oct. 23 was mostly along party lines, with six Republicans opposing him and two Democrats supporting him.

Reagan’s second choice to succeed Powell, appellate court judge Douglas H. Ginsburg, was forced to withdraw amid reports that he had used marijuana on occasion not just while a student in 1960s but as an assistant professor at Harvard University in the 1970s. Reagan filled the seat with his third pick, Anthony Kennedy, who went on to be the court’s pivotal swing vote for two decades, making Bork’s rejection even more consequential.

Four months after the Senate vote, Bork stepped down as an appellate judge. He worked at the American Enterprise Institute until 2003, then at the Hudson Institute. He was an adviser to Republican nominee Mitt Romney in the 2012 presidential election.

In “Slouching Towards Gomorrah: Modern Liberalism and American Decline” (1996), Bork wrote that the Supreme Court was suffering from a “crisis of legitimacy” due to “the judicial adoption of the tenets of modern liberalism.”

The only way to restore legitimacy, he wrote, would be a constitutional amendment making any state or federal court decision subject to override by majority votes in the House and Senate.

Robert Heron Bork was born on March 1, 1927, in Pittsburgh, the only child of Harry Bork, a purchasing agent for a steel firm, and the former Elizabeth Kunkle, a teacher.

He graduated from the Hotchkiss School in Lakeville, Connecticut, in 1944. Following two semesters at the University of Pittsburgh, he enlisted in the U.S. Marine Corps in 1945 and was in training when World War II ended.

He earned his undergraduate degree from the University of Chicago in 1948 and returned there for law school, graduating in 1953 following a second stint with the Marines.

In a 1997 interview with the District of Columbia Bar, he said his political views were socialist and “quite radical” from his teenage years until his exposure during law school to the “rigorous analysis” of University of Chicago’s economists.

Intent on becoming an antitrust lawyer, he went to work in New York at what today is Willkie Farr & Gallagher LLP, then in Chicago at Kirkland & Ellis LLP. In 1962, with a wife and three young children, he moved to New Haven, Connecticut, to accept a teaching job at Yale Law School.

He was named U.S. solicitor general by President Richard Nixon at the start of his second term in 1973. By the end of that year, Bork was embroiled in the growing scandal over the Nixon White House’s cover-up of the June 1972 break-in at Democratic National Committee headquarters at the Watergate office complex.

In what became known as the Saturday Night Massacre, Nixon on Oct. 20, 1973, ordered the dismissal of the independent Watergate prosecutor, Archibald Cox. The attorney general, Elliot Richardson, and his deputy, William Ruckelshaus, both resigned rather than fulfill the order. That left Bork as acting attorney general, and he carried out the firing of Cox while ensuring that a new special prosecutor, Leon Jaworski, was appointed to continue the investigation.

Back at Yale after Jimmy Carter took office in 1977, Bork finished “The Antitrust Paradox: A Policy at War with Itself” (1978), his critique of U.S. laws that, he said, were discouraging necessary competition.

He returned to Washington in 1981 as a partner with Kirkland & Ellis. Months later, Reagan named him to a seat on the Court of Appeals for the D.C. Circuit.

His first wife, the former Claire Davidson, died in 1980 of cancer. They had three children, Charles, Ellen and Robert Jr. In 1982, Bork married the former Mary Ellen Pohl.

 

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