Robert H. Bork, the conservative jurist whose 1987 Supreme Court nomination the Senate rejected by a record margin after one of the bitterest confirmation battles in US history, has died, his son reported. He was 85.
The fight over Mr. Bork’s confirmation took on a significance that extended well beyond politics and law. It became a flashpoint in the culture wars between post-’60s liberalism and a resurgent conservatism. To the right, the rejection of Mr. Bork symbolized the triumph of political correctness. To the left, his nomination represented an attempt to impose a reactionary political agenda on the courts. Liberal groups mounted extensive advertising campaigns attacking Mr. Bork.
Indeed, the verb “to bork,” entered the political lexicon. Safire’s Political Dictionary defines it as “attack viciously a candidate or appointee, especially by misrepresentation in the media.” The ferocity surrounding Mr. Bork’s confirmation process prefigured that inspired by Clarence Thomas’ nomination four years later.
None questioned Mr. Bork’s credentials to sit on the nation’s highest court. At the time of his nomination, he had spent five years as a judge on the US Court of Appeals for the District of Columbia Circuit. He had served as solicitor general, the third-highest position in the Justice Department, and acting attorney general during the Nixon administration. (Mr. Bork played a crucial role in the “Saturday Night Massacre,” when President Richard Nixon’s dismissal of Watergate special prosecutor Archibald Cox led to the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus and inspired a firestorm of protest in October 1973. Mr. Bork’s refusal to resign along with his superiors was held against him in some quarters during his confirmation battle.)
As a professor at Yale Law School, Mr. Bork had earned a reputation as a leading authority on anti-trust law and, more generally, for intellectual firepower. Most recently, he served as one of the conservative scholars advising former Massachusetts governor Mitt Romney during Romney’s failed run for the presidency.
Mr. Bork earned a reputation as perhaps the foremost proponent of interpreting the Constitution in terms of the original intent of the Founders. As such, he was a fierce critic of what he saw as the judicial activism the Supreme Court practiced under Chief Justice Earl Warren during the ’50s and ’60s, an activism it only somewhat tempered under Chief Justice Warren Burger in subsequent years.
In announcing Mr. Bork’s nomination, President Ronald Reagan noted he was “widely recognized as the most prominent and intellectually powerful advocate of judicial restraint.”
For Mr. Bork’s opponents, that was precisely the problem. They did not question his credentials. They questioned his views — or rather their extremeness.Although Mr. Bork hailed Brown v. Board of Education, the landmark 1954 ruling that declared segregation unconstitutional, as “a great and correct decision,” he called it “a very weak legal opinion.” In a 1963 article, he had called civil rights demonstrators “a mob” who coerced “other private individuals in the exercise of their freedom.” He later expressed regret over such language and said his views had changed. Yet as a result of such past racial insensitivity, civil rights organizations strenuously opposed his nomination.Feminist groups also opposed Mr. Bork’s nomination. He had previously denounced the Supreme Court’s upholding a woman’s constitutional right to an abortion as “judicial imperialism” and in 1968 he had called the Supreme Court’s citing a constitutional right to privacy in its landmark 1965 ruling Griswold v. Connecticut “one more slogan” employed by judges “writing their own tastes into law.”
A few hours after Reagan announced Mr. Bork’s nomination, Sen. Edward M. Kennedy (D-Mass.) denounced it in a speech on the Senate floor. “Robert Bork’s America is a land in which women would be forced into back-alley abortions,” Kennedy said, “blacks wold sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids. . . ”
Kennedy’s speech, Mr. Bork later wrote, “set the themes and the tone” for the confirmation battle that followed.
Mr. Bork was no stealth candidate. He had given 84 speeches in the year prior to his nomination, delivered more than 150 appeals court decisions during his time on the bench, and as a law professor written nearly 80 articles. “If I hadn’t written anything,” Mr. Bork said in a 1990 Chicago Tribune interview, “they wouldn’t have had anything to distort.”Continued...