Robert Heron Bork

BORK, ROBERT HERON

Robert Heron Bork, conservative legal scholar, author, and former federal appellate judge, was one of President Ronald Reagan’s most controversial nominees for the U.S. Supreme Court.

When Bork was nominated to the Supreme Court in July 1987 his opponents ridiculed him as an archconservative who wanted to take away the rights and freedoms enjoyed by the political mainstream. They may have been surprised to learn that Bork began his career at the other end of the political spectrum. Born March 1, 1927, in Pittsburgh, Bork spent his high school and college years as a socialist. He attended the University of Chicago, where he received his bachelor’s degree in 1948. In 1952, as a University of Chicago law student, Bork was a NEW DEAL liberal supporting ADLAI STEVENSON for president.

Eventually, however, his political philosophy
changed to embrace free-market LIBERTARIANISM:
the law and economics program at the University
of Chicago, a bastion of free enterprise
research and laissez-faire economic theory, convinced
Bork that government should not intervene
in the economy.
Bork received his law degree in 1953. After
serving two hitches in the U.S.Marine Corps he
practiced for a large law firm in Chicago, where
he specialized in ANTITRUST LAW. In 1962, Bork
accepted a position teaching antitrust and CONSTITUTIONAL
LAW at Yale University. At Yale, he
developed his doctrine of “original intent and
judicial restraint,” which stated that courts can
protect only the rights that are guaranteed in the
Constitution; all other rights are subject to limitation
by Congress and the legislatures. In
deciding which rights are to be afforded constitutional
protection, courts must be guided by
the ORIGINAL INTENT of the Constitution’s
Framers. For example, the FOURTEENTH
AMENDMENT was intended to grant EQUAL PROTECTION
under the laws to black citizens; therefore,
Bork argued, it cannot be used to approve
or mandate AFFIRMATIVE ACTION for women.
President RICHARD M. NIXON appointed Bork
SOLICITOR GENERAL in 1973. Later that year, by
order of Nixon and at the request of the attorney
general, who had resigned in protest against the
order, Bork fired Special Prosecutor ARCHIBALD
COX at a crucial stage of the WATERGATE investigation. Those events came to be known as the Saturday
Night Massacre. In 1977 Bork returned to
Yale, and in 1981 he left Yale for private practice
in Washington, D.C. The following year President
Reagan appointed him to the U.S. Court of
Appeals, District of Columbia Circuit. On July 1,
1987, Bork was nominated to the Supreme
Court to replace retiring associate justice LEWIS F.
POWELL JR.
Over the years, Bork criticized many
Supreme Court decisions. In a 1963 article in
The New Republic, Bork attacked the proposed
Public Accommodations Act—which became
title II of the CIVIL RIGHTS ACT OF 1964 (78 Stat.
2441, 42 U.S.C.A. § 2000a)—as an infringement
of the right of free association. Eight years later,
in an article in the Indiana Law Journal, Bork
summarized his view of the Constitution and
pointed out Court decisions that, in his opinion,
were unconstitutional. He declared that the
Constitution provided no unwritten protections
and therefore guaranteed no right to privacy,
contrary to what the Court had established in
GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S.
Ct. 1678, 14 L. Ed. 2d 510 (1965). Privacy, Bork
said, was a free-floating right not derived in a
principled fashion from the Constitution. If no
right of privacy existed in Griswold, then,
according to Bork, the landmark ABORTION case
ROE V. WADE 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed.
2d 147 (1973) was wrongly decided.
Similarly unprincipled, said Bork, were the
decisions of the WARREN COURT that affected
voting practices and established the principle of
“one person, one vote.” Bork also said POLL
TAXES (devices often used to keep poor blacks
from voting in the South) were not necessarily
unconstitutional. In addition, according to
Bork, the FIRST AMENDMENT should protect
only political speech.When he was solicitor general,
Bork criticized Shelley v. Kraemer, 334 U.S.
1, 68 S. Ct. 836, 92 L. Ed. 1161 (1948), a landmark
CIVIL RIGHTS decision that outlawed the
enforcement of restrictive covenants in the
courts. Finally, Bork publicly expressed his belief
that it would be healthy to reintroduce religion
into the public schools.
In the summer of 1987 the United States
witnessed the most contentious Supreme Court
confirmation battle in the 200-year history of
the Constitution. The battle over Bork’s confirmation
turned into a fight-to-the-finish for ideological control of the Court and in a very real
sense for the Constitution itself. Bork was a prolific
legal scholar who had left a vast “paper
trail” for his opponents to pore over in the
search for ammunition to block his appointment
to the Court.While leaders of the political
right such as the Reverend Jerry L. Falwell and
Pat Robertson praised Bork as a savior for a
“morally misguided” Court, a coalition of
prominent civil rights and other organizations,
including the National Association for the
Advancement of Colored People (NAACP), Common
Cause, People for the American Way, the
NATIONAL ORGANIZATION FOR WOMEN, the
National Abortion Rights Action League, and
the AMERICAN CIVIL LIBERTIES UNION, came
together quickly to fight the nomination. LOBBYING
efforts on both sides of the struggle were
aggressive. Clearly, both liberals and conservatives
saw the Bork nomination as the culmination
of all previous showdowns between the left
and the right throughout the Reagan administration.
Liberals were particularly determined to
stop the nomination. Despite evidence to the
contrary, the White House continued to insist
that Bork was a moderate conservative like Justice
Powell and a model practitioner of judicial
restraint.
Bork’s confirmation hearing before the SENATE
JUDICIARY COMMITTEE in September 1987
seemed to hurt his appointment more than any
criticisms since the announcement of his nomination.
His testimony further stirred his critics
to label Bork as much further to the right on the
political and legal spectrum than many Americans.
In addition, during the hearings, Bork
revised or backed down from some of his previous
positions, which seemed to indicate that he
was willing to change his mind in order to gain
the nomination. Commentators believe that this
helped convince many undecided senators to
vote against him. On October 6 the Senate Judiciary
Committee rejected Bork’s nomination by
a vote of 9–5. In a vote by the full Senate on
October 23, Bork’s nomination to the Supreme
Court was rejected by a margin of 58 to 42.
Critics of original intent saw Bork’s rejection
as a victory for the perception of the Constitution
as a “living” instrument, to be adapted to
human needs by a judiciary with sufficient discretion
to decide what public values are important
enough to protect from majority rule.
Bork’s supporters called him a victim of liberal
attacks.
Bork resigned from the court of appeals in
1988 and joined the American Enterprise Institute
for Public Policy Research, a prominent
Washington-based think tank. As a senior fellow
at the Institute, Bork continued to write and
comment on U.S. law and society. Bork published
numerous articles and has been a frequent
legal commentator on various television
shows.
In books such as The Tempting of America:
The Political Seduction of the Law (1989), The
Antitrust Paradox: A Policy at War with Itself (2d
ed. 1993), and Slouching Toward Gomorrah:
Modern Liberalism and American Decline (1996),
Bork espoused his strongly conservative views.
He advocated CENSORSHIP of certain rap lyrics
as well as explicit sexual material found on the
INTERNET. He has written that liberals and feminists
have helped to destroy the morality of the
United States and that there is a relationship
between illegitimate births and crime rates.
FURTHER READINGS
Abraham, Henry Julian. 1999. Justices, Presidents, and Senators:
A History of the U.S. Supreme Court Appointments
from Washington to Clinton. New York: Rowman & Littlefield.
Bork, Robert H. 1990. The Tempting of America: The Political
Seduction of the Law. New York: Simon & Schuster.
Kutler, Stanley I. 1992. The Wars of Watergate: The Last Crisis
of Richard Nixon. New York: Norton.
Pertschuk, Michael, and Wendy Schaetzel. 1989. The People
Rising: The Campaign against the Bork Nomination.
New York: Thunder’s Mouth Press.
Sager, Lawrence. 1990. “Back to Bork.” New York Review of
Books (October 25).