Robert Bork

Robert Heron Bork (born March 1, 1927 in Pittsburgh, Pennsylvania) is a conservative American legal scholar who advocates the judicial philosophy of originalism. Bork formerly served as Solicitor General, acting Attorney General, and circuit judge for United States Court of Appeals. In 1987 he was nominated to the Supreme Court by President Ronald Reagan, but he was not confirmed by the Senate. Currently, Bork is a lawyer, law professor, best-selling author, and fellow at several prominent conservative organizations.

Advocacy of originalism

Bork is best known for his theory that the only way to reconcile the role of the judiciary in American 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 has 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 judgements.

Bork built on the influential critiques of the Warren Court authored by Alexander Bickel, who criticized the Supreme Court under Warren for shoddy and inconsistent reasoning, undue activism, and misuse of historical materials. Bork's critique was harder-edged than Bickel's, however: 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 have influenced the opinions of conservative judges such as Associate Justice Antonin Scalia and former Chief Justice William Rehnquist of the U.S. Supreme Court, and sparked a vigorous debate within the legal academy about how the constitution is to be interpreted.

Early career

Bork earned bachelor's and law degrees from the University of Chicago, where he became a brother of the international social fraternity of Phi Gamma Delta, and University of Chicago Law School. After a period of service in the United States Marine Corps, Bork began as a lawyer in private practice in 1954 and then was a professor at Yale Law School from 1962 to 1975 and 1977 to 1981. At Yale, he was best known for writing The Antitrust Paradox, a book in which he argued that consumers were often beneficiaries of corporate mergers, and that many then-current readings of the antitrust laws were economically irrational and hurt consumers. Bork's writings on antitrust law, along with those of Richard Posner and other law and economics thinkers, were heavily influential in causing a shift in the U.S. Supreme Court's approach to antitrust laws since the 1970s.

Term as Solicitor General

Bork served as Solicitor General in the U.S. Department of Justice from 1972 to 1977, except for 1973 to 1974 when he served as acting Attorney General. As Solicitor General, Bork argued several high profile cases before the Supreme Court in the 1970s, including 1974s Milliken v. Bradley, where Bork's 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. Also, Bork hired many young attorneys as Assistants who went on to have remarkable careers, including Judges Danny Boggs, Frank H. Easterbrook and Robert Reich, who went on to become President Clinton's Secretary of Labor.

Term as acting Attorney General and the Saturday Night Massacre

Bork served as acting Attorney General of the United States from 1973 to 1974. As acting Attorney General, he is known for carrying out U.S. President Richard Nixon's order to fire Watergate Special Prosecutor Archibald Cox following Cox's request for tapes of Oval Office conversations. The firing incident is known as The "Saturday Night Massacre." Nixon's Attorney General Elliot Richardson and Richardson's Deputy Attorney General, William Ruckelshaus, resigned rather than carry out the order. Bork, next in line after Richardson and Ruckelshaus, became acting head of the Justice Department, and Nixon reiterated his order to fire Cox. Bork complied with Nixon's order and fired Cox. He subsequently resumed his duties as Solicitor General.

Supreme Court nomination

Bork was a circuit judge for the United States Court of Appeals for the District of Columbia Circuit from 1982 to 1988, and was nominated by President Ronald Reagan to the Supreme Court in 1987. A hotly contested Senate debate over his nomination then ensued, partly fuelled by strong opposition by civil and women's rights groups concerned with what they claimed was Bork's desire to roll back civil rights decisions of the Warren and Burger courts.

Two dramatic events of the Senate debate were Senator Edward Kennedy's speech opposing Bork's nomination and the disclosure of Bork's video rental history. Within an hour of Bork's nomination to the Court, Kennedy took to the Senate floor with a strong condemnation of it. Kennedy declared, "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 government." TV commercials narrated by Gregory Peck attacked Bork as an extremist. Kennedy's speech fueled widespread public skepticism of Bork's nomination. Others, including Bork himself, felt the speech egregiously misrepresented his views. During debate over his nomination, Bork's video rental history was leaked to the press, which led to the enactment of the 1988 Video Privacy Protection Act. 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.

To pro-choice groups, Bork's originalist views and his belief that the Constitution does not contain a general "right to privacy" were viewed as a clear signal that, should he become a Justice on the Supreme Court, he would vote to reverse the Court's 1973 decision in Roe v. Wade. Accordingly, a large number of women's groups mobilized to press for Bork's rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle. Bork was faulted for his bluntness before the committee, including his frank criticism of the reasoning underlying Roe v. Wade. On October 23, 1987, the Senate rejected Bork's confirmation, with 42 support votes, and 58 oppose votes. The vacant seat on the court to which Bork was nominated eventually went to Justice Anthony Kennedy.

The history of Bork's disputed nomination is still a lightning rod in the contentious debate over the limits of the "Advice and Consent of the Senate" that Article Two of the United States Constitution requires for judicial nominees of the President.

"Bork" as a verb

According to the New York Times, the verb to bork might be defined as "to destroy a judicial nominee through a concerted attack on his character, background and philosophy." ^*

The best known use of the verb to bork occurred in July 1991 at a conference of the National Organization for Women in New York City. Feminist Florence Kennedy addressed the conference on the importance of defeating the nomination of Clarence Thomas to the U.S. Supreme Court. She said, "We're going to bork him." ^* Thomas was subsequently confirmed after one of the most divisive confirmation fights in Supreme Court history.

Recent work

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 a Senior Fellow at the American Enterprise Institute for Public Policy Research, a conservative think tank. Bork also consulted for Netscape in the Microsoft litigation. Bork is currently a fellow at the Hudson Institute. He served as a visiting professor at the University of Richmond School of Law and is a professor at Ave Maria School of Law in Ann Arbor, Michigan.

In October 2005, Bork came out against the nomination of Harriet Miers to the Supreme Court. When asked by Tucker Carlson about her nomination, he replied, "I think it's a disaster on every level." Bork called her nomination a "slap in the face to the conservatives who've been building up a conservative legal movement for the last 20 years." ^*

He has also written several books, including Slouching Towards Gomorrah: Modern Liberalism and American Decline, in which he argues that the social movements of the 1960s, such as the sexual revolution and the rise of feminism, led to dangerous social and moral decline in the U.S. He believes that these movements have in effect eliminated the moral standards necessary for civil society, and have led to a society whose values are inherently opposed to Western civilization. Bork also advocates a modification to the Constitution which would allow Congressional supermajorities to override Supreme Court decisions. Though Bork has many liberal critics, some of his arguments have earned criticism from conservatives as well. Bork has denounced what he calls the "NRA view" of the Second Amendment, something he describes as the "belief that the constitution guarantees a right to Teflon-coated bullets." Instead, he has argued that the Second Amendment merely guarantees a right to participate in a government militia. (Life Magazine, Vol 14, No 13)

In December 2005, Bork wrote an article in the periodical National Review calling for government censorship of popular culture, including television, film and music. Bork claimed that "in America can be enhanced by reinstating, legislatively, restraints upon the direction of our culture and morality". [http://www.reason.com/hitandrun/2005/12/censors_for_fre_1.shtml#011881

Bork converted to Catholicism from Protestantism in 2003. His wife, Mary Ellen Bork, is a former Roman Catholic nun.

Selected writings

Bork, Robert H. (1993). The Antitrust Paradox. New York: Free Press. ISBN 0029044561.
Bork, Robert H. (1996). Slouching Towards Gomorrah: Modern Liberalism and American Decline. New York: ReganBoooks. ISBN 0060391634.
Bork, Robert H. (1997). The Tempting of America. New York: Free Press. ISBN 0684843374.
Bork, Robert H. (2003). Coercing Virtue: The Worldwide Rule of Judges. Washington, D.C.: American Enterprise Institute Press. ISBN 0844741620.
Bork, Robert H. (Ed.) (2005). A Country I Do Not Recognize: The Legal Assault On American Values. Stanford: Hoover Institution Press. ISBN 0817946020.

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