Robert Heron Bork, 85, died in Arlington, Virginia on December 19, 2012, of complications from heart disease. Supreme Court Justice Antonin Scalia referred to the late Bork as “one of the most influential legal scholars of the past fifty years” and “a good man and a loyal citizen.” Senator Mike Lee (R-Utah) praised him as “one of America’s greatest jurists and a brilliant legal mind.” The elderly Bork remained active in politics by serving as ”a distinguished fellow of the Hudson Institute, a conservative Washington think tank,” and in 2011, Bork served as Presidential nominee Mitt Romney’s legal adviser as co-chairman of Romney’s “Justice Advisory Committee.” Perhaps he was hoping for a job in the Romney administration; if so, we have another reason to be delighted that Romney lost.
It’s in poor taste to actually cheer or celebrate the demise of any human being, and I’m sure his friends, family and other loved ones who cherished him and cared about him are suffering and grieving. Also, no human being is without redeeming qualities of some sort. Perhaps Bork was fond of puppies or long walks along the beach. Maybe he cried buckets each time those Sarah McLachlan ASPCA commercials aired on the TV. To those who loved him, I offer sincere condolences and sympathy.
This article is for everyone else.
Bork served as the Acting United States Attorney General from October-December 1973 under President Nixon, the United States Solicitor General from 1973-1977 under Presidents Nixon and Ford, and was nominated by President Reagan to serve as Judge of the Court of Appeals for the District of Columbia Circuit (1982-1988). When Bork retired from his appellate-court judgeship in 1988–or, more accurately, when he resigned in a fit of pique because he was not appointed to the Supreme Court (Justice Anthony Kennedy got the job instead), Judge Clarence Thomas succeeded him…and, of course, Thomas himself is now a Supreme Court Justice.
Folks who were alive during the Reagan era–or those who are just interested in history or politics in general–probably remember Robert Bork best as Reagan’s nominee for Supreme Court in 1987 after Justice Lewis Powell announced his plans to retire. Reagan had already appointed two justices: Sandra Day O’Connor in 1981 (whose nomination Christian fundamentalist Reverend Jerry Falwell personally opposed, making a special trip to the White House to argue with Reagan about it) and Antonin Scalia in 1986 (who we are still stuck with to this day; thanks a heap for Bush v. Gore, Scalia). Naturally, since Supreme Court justices remain on the bench until extreme old age or death, and since SCOTUS decisions set legal precedent for all lower courts in the entire country, liberals were scared poopless to see who Reagan, a staunch conservative, would propose. He picked Robert Bork.
The resulting Senate hearings were extremely contentious–setting a precedent for how the Senate has grilled most SCOTUS nominees since (Clarence Thomas’ confirmation was similarly heated)–with then-Senator Joe Biden heading the Judiciary Committee.
From The Houston Chronicle:
Biden, chairman of the Judiciary Committee and a leading opponent of the Bork nomination, also said he was worried that the conservative Bork might want to reconsider some landmark cases of the past, such as decisions granting women the right to abortions or acknowledging a sweeping right to privacy for individuals. ”It scares the devil out of me” to contemplate Bork’s potential interest in trying to change some of the decisions he has criticized in past writings as a law professor, Biden said.
Senator Ted Kennedy in particular was strongly opposed Bork’s possible appointment and famously stated:
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 the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy. [...]
President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate, and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.
At one point in the proceedings, Sen. Kennedy played a 1985 audio tape of Bork speaking to Canisius College in Buffalo, N.Y. Bork was recorded saying, “I don’t think that in the field of constitutional law, precedent is all that important.” Kennedy pointed out that this disregard for precedent–pretty much the entire basis of our judicial system, where previous decisions by other, typically higher, courts are used to support your case in subsequent disputes–was especially distressing when Bork had told the Senate that ”respect for precedent is part of the great tradition of our law, just as is fidelity to the intent of those who ratified the Constitution and enacted our statutes” during the hearings. Kennedy stated that these conflicting statements about precedent, made only two years apart, failed to fill him with confidence that Bork would “respect the positions of the courts with which you disagree.”
Was Kennedy fair? Bork didn’t think so. He held a grudge to his dying day. Conservatives didn’t think so. Pretty much everyone else, however, thought Kennedy was more than fair, and may have even understated the case.
Jeffrey Toobin from The New Yorker says:
Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century. The fifty-eight senators who voted against Bork for confirmation to the Supreme Court in 1987 honored themselves, and the Constitution. In the subsequent quarter-century, Bork devoted himself to proving that his critics were right about him all along. [...]
Much of the questioning [of the Senate Judiciary Committee] focused on Bork’s long-held belief that the Constitution does not include a right to privacy. As one of the creators of the “originalist” school of constitutional interpretation, Bork asserted that since the framers did not use the word “privacy,” that value was not reflected in our founding document. Accordingly, he opposed such decisions as Griswold v. Connecticut, which said states could not ban married couples from buying birth control, and Roe v. Wade, which prohibits states from banning abortion. He promised the senators he would reflect those views as a Supreme Court Justice. [...]
Was Kennedy too harsh? He was not—as Bork himself demonstrated in the series of intemperate books he wrote after losing the Supreme Court fight and quitting the bench, in 1987. The titles alone were revealing: ”The Tempting of America,” “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” and “Coercing Virtue: The Worldwide Rule of Judges.” One of his last books may have summed up his views best. Thanks in part to decisions of the Supreme Court—decisions that, for the most part, Bork abhorred—the United States became a more tolerant and inclusive place, with greater freedom of expression and freedom from discrimination than any society in history. Bork called the book, accurately, “A Country I Do Not Recognize.”
Jason Manning from the website The Eighties Club: The Politics and Pop Culture of the 1980s writes:
The AFL-CIO, the American Civil Liberties Union, Common Cause, the NAACP and the National Organization of Women were just a few of the organizations who hurled themselves into the fray in order to prevent Bork’s ascension to the highest court in the land. They argued that the Ninth Amendment [of] the Constitution acknowledged unidentified rights and it was up to the Supreme Court to define and defend them in keeping with the premise that Americans should live in a free society where all people were equally protected under the law. Bork’s opinions and writings, said his critics, revealed a man who posed a serious threat to basic principles of social justice. [...]
In his five days of testimony — the longest confirmation hearing for any Supreme Court nominee since hearings began in 1939 — Bork surprised everyone. He modified many of his most controversial views. Whereas in 1971 he had argued that constitutional protection of free speech applied only to that which was political in nature, in 1987 he conceded that First Amendment guarantees applied to news, opinion, literature and more. He had claimed that the “equal protection” clause of the Fourteenth Amendment should apply only to racial and not gender discrimination; during the hearing he stated that equal protection should in fact apply also to women. Bork’s approach to the hearing was in keeping with the decision by the White House to avoid an ideological fight and tout the nominee as a moderate. This soft sell did not sit well with Bork’s supporters, his detractors, or the undecided senators.
Another week of testimony by a hundred witnesses followed Bork’s appearance. Among them was William T. Coleman, a prominent black Republican attorney and a strong supporter of Reagan. But Coleman broke ranks with the president this time, speaking out in opposition to confirmation. “When it has counted,” he wrote in a New York Times op-ed piece, “Robert Bork has often stood against the aspirations of blacks to achieve their constitutional rights.” Former Texas congresswoman Barbara Jordan and Atlanta mayor Andrew Young also testified against the nominee. [...]
On October 6, the Judiciary Committee voted 9 to 5 against confirming Bork and most of the judge’s supporters, realizing that a full vote in the Senate would also go against their man, expected Bork to withdraw from the process. But Bork announced he would continue the fight, though he was disappointed by waning support from the White House. [...] On October 23, the Senate voted 58-42 against the nomination.
Folks alive during the Nixon administration will also remember Robert Bork. John Cook at Gawker gives a beautifully brutal explanation why Bork deserves much of the animus he endured during the 1987 Senate hearings:
It was Bork who, as solicitor general of the United States in 1973, stepped up to the plate and carried out an order from Nixon that two of his superiors found too abjectly corrupt to obey. In what became known as the Saturday Night Massacre, Nixon ordered Attorney General Elliot Richardson to fire special Watergate prosecutor Archibald Cox and his entire staff. The order came shortly after Cox had, over the objections of the president, subpoenaed a cache of presidential tape recordings.
Those tape recordings, as you may have already guessed (or known), led to the downfall of President Nixon. They were evidence that Nixon had personally participated in illegal activities: a conspiracy that violated campaign finance laws and involved spying on political adversaries and trying to interfere with and sabotage them. (This should not have come as a surprise, as Nixon interfered with diplomatic relations in Vietnam and we know, thanks to audio-taped conversations, that he lied to President Lyndon B. Johnson about it; his shenanigans probably cost Democratic challenger Hubert Humphrey the election.)
Richardson, probably appalled, resigned rather than firing Cox or in any other way helping Nixon cover up his misdeeds. When Richardson stepped down, his deputy, William Ruckelshaus, was presented with the same moral dilemma and also pressured to boot Cox, and he, too, chose the honorable path and resigned. Guess who was third in line, as Solicitor General?
Good ol’ Robert Bork.
Bork, predictably, received the same order: fire Cox, and do it now. You can probably guess what he chose to do. What, did he take the moral high ground and refuse to scapegoat Cox for just doing his job? Did he resign like Richardson and Ruckeshaus did? Oh, dearest naïve, optimistic Reader. If only that were so.
As Gawker’s Cook says:
Sniveling bootlicker that [Bork was], he carried it out. And surely Nixon knew that Bork would bend to his will—he had previously offered Bork the job of his chief defense counsel in the Watergate matter, a job that Bork later said he would have accepted if Nixon had allowed him to listen to the tapes. When he asked, Nixon’s chief of staff Al Haig told him that the president would rather publicly burn the tapes and resign than let anybody, even his own attorney, listen to them.
Knowing that Nixon regarded those tapes as a red line, Bork fired Cox and his staff, and—in a startlingly dystopian move that is scarcely conceivable happening in the U.S. even today—saw to it that FBI agents sealed off his offices, as well as those of Richardson and Ruckelhaus, so that the president could lock down any evidence of his criminality they had uncovered. Bork would later describe his reasoning: “A junior officer in the government cannot face down the president and expect to get away with it.” Which is a different way of saying that the president is immune from criminal investigation at the federal level. If the president does it, that means it’s legal.
Thus did Bork earn a reputation, as Kenneth B. Noble of The New York Times put it (in 1987), as an “advocate of disproportionate powers for the executive branch of Government, almost executive supremacy.” Noble explains:
As the Senate ponders the way Mr. Bork handled that earlier role, among other issues in the confirmation battle to come, it is likely to find that his consuming interest was not protecting President Nixon’s weakening grip on office, as some foes charged immediately, or protecting the Justice Department from chaos, as he has suggested, or any of the larger issues of the day. Instead, Mr. Bork was apparently preoccupied with a point of law: whether Archibald Cox, who as Watergate special prosecutor was ostensibly a Justice Department official, had a legal right to mount a court challenge against the President, and whether the President had the legal authority to dismiss him for doing so.
No wonder Nixon was fond of him, and chose him as his defense attorney when Nixon’s cadre of crooks and the conspiracy to conceal their corrupt activities came to light.
Gawker’s Cook is magnificent in his moral outrage, possibly goaded into it by hearing about conservatives like Lee and Scalia rushing to praise and heap laurels on Bork. One can hardly blame him:
It’s easy to second-guess difficult moral choices in hindsight. It’s easy to condemn people for getting hard choices wrong. This isn’t one of those cases. Two brave men had shown Bork the right path. He could have followed them and slept that night with a clean conscience. Instead, he chose corrupt power over justice. He chose criminality over law. He participated in a vast effort to obstruct a criminal investigation that thankfully failed despite his best efforts. That the man Richard Nixon chose as his defense attorney was ever even fleetingly considered for a seat on the highest court in the land, let alone nominated, is a cruel prank.
Bork is, quite fairly, considered a very influential legal scholar; one does not have to hold universally beloved opinions in order to be respected for having a sharp legal mind. That said, consider Bork’s Greatest Hits, and decide for yourself if we dodged a bullet or not when he failed to get seated for life as a SCOTUS justice.
Bork criticized judges for making politically motivated legal decisions. He disapproved of judges who would knowingly ignore the wishes and opinions of the majority of citizens, or who would make decisions that he felt went counter to the Constitution. That sounds reasonable! The problem here is that Bork, hypocritically, was known for doing just that: allowing his partisan preferences shape his judicial decisions. Perhaps he only disapproved if those judges held political views that differed from his own.
Some of Bork’s views were examined when Lloyd Grove from The Daily Beast interviewed him in 2011, once his ties to Mitt Romney were uncovered:
Bork [...] has argued that the Constitution should be amended so that bad Supreme Court decisions can be reversed by Congressional supermajorities. [...]
Bork criticized [landmark civil rights legislation in the 1960s] on the ground that government coercion of “righteous” behavior is “a principle of unsurpassed ugliness.” And now? “That was a reflection of what I thought at the time, because I said it,” he acknowledges. “But, heck, it was a long time ago. And it turns out that the transition to a non-discriminatory society was much easier than I thought it would be. I am now perfectly happy with the way things turned out.” [...]
I ask Bork [who is married to a former nun, and a late-in-life convert to Catholicism] if he still disagrees with the high court’s Griswold v. Connecticut ruling that married couples have a constitutional right to the use of contraception? [7 SCOTUS justices supported Griswold, 2 opposed.] “Oh, my God, yes!”
And does he still believe that the First Amendment should be limited to political speech and not protect, as he once wrote, “any other form of expression, be it scientific, literary or…pornographic”? “Oh yes!” he answers enthusiastically. “If you look at what they say, the First Amendment supposedly defines things like child pornography. The Supreme Court said there was a right to it. That’s actually insane.”
How about the Equal Protection Clause of the 14th Amendment? Does he still think it shouldn’t apply to women? “Yeah,” he answers. “I think I feel justified by the fact ever since then, the Equal Protection Clause kept expanding in ways that cannot be justified historically, grammatically, or any other way. Women are a majority of the population now—a majority in university classrooms and a majority in all kinds of contexts. It seems to me silly to say, ‘Gee, they’re discriminated against and we need to do something about it.’ They aren’t discriminated against anymore.”
In short, Bork opposed civil rights, equal rights, contraception even for married heterosexual couples, and did not feel the First Amendment protected anything other than specifically political speech.
Bork opposed any effort by the federal government to oppose fair voting standards and regulations; in fact, he was not opposed to reinstating poll taxes. In a letter to The New York Times’ editor, John H. Buchanan and Arthur J. Kropp of People for the American Way write:
At Robert Bork’s confirmation hearing to be Solicitor General, he defended the poll tax struck down in Harper v. Virginia, saying, ”It was a very small tax, it was not discriminatory, and I doubt that it had much impact on the welfare of the nation one way or the other.” In his 1987 confirmation hearing, he held firm to this view, stating, ”It was just a $1.50 poll tax.” [...]
Judge Bork’s statements on literacy tests are also a defense of their use – he characterized the decisions upholding Congressional authority to ban literacy tests as ”very bad, indeed pernicious, constitutional law.” Under his theory, the courts and Congress would be prevented from taking any action, and the only remedy would be through constitutional amendment. While Judge Bork recognizes that the Fourth Amendment protects against unreasonable searches and seizures, one form of a right of privacy, at his confirmation hearing he reiterated his long-held view opposing an unenumerated right, ”I do not have available a constitutional theory which would support a general defined right” of privacy. [...]
Judge Bork was not running for the legislature; he sought a lifetime seat on our nation’s court of last resort. We have no reason to believe, and we did not suggest, that as a legislator he would vote to enact a poll tax. Judge Bork’s statements clearly indicate, however, that as a judge, he would defend a state legislature’s ability to enact a poll tax. It is on his judicial philosophy, not his personal preferences, that his nomination must be judged.
It would be possible to write a shelf full of books examining Bork’s controversial and regressive legal opinions, but there is one in particular that is possibly the most horrific and terrible of all.
Bork was considered to be a leading anti-trust scholar, and often advocated for the welfare of corporations over the interests of consumers. He felt strongly that corporate mergers benefited consumers, or at least claimed he felt that way. His writings on anti-trust law has been very influential, for better or worse. Now that we have the benefit of hindsight, it is arguable that allowing corporations to form monopolies or mergers is not necessarily all that beneficial to the little guy who might wish to purchase goods or services from them. It’s likely that Bork would have had no problem making decisions like Citizens United which benefit corporations to the detriment of the integrity of our political process.
Judy Wiessler of The Houston Chronicle covered the Senate Judiciary Committee hearings back in 1987. During the hearings, Bork, as Supreme Court nominee, was forced to defend an appellate court opinion–”reached on narrow grounds and based on intricacies of federal procedure”–which upheld American Cyanamid Co.’s plan that forced women to choose between their jobs and being sterilized, “because lead levels in the plant were so high that fetuses would be endangered.” Bork said that some women were “glad to have the choice” of whether to be sterilized or lose their jobs at the chemical company. Wiessler clarifies:
Bork, who Friday defended the decision he wrote for a unanimous three-judge panel in the sterilization case, agreed that the choice was “distressing,” but insisted the opinion was “not pro-sterilization” or “anti-woman.” ”They offered a choice to the women, some of them, I guess, didn’t want to have children,” Bork said. “I suppose the five women who chose to stay on the job with higher pay and chose sterilization [...] I suppose that they were glad to have the choice,” he said.
The comment enraged women’s rights groups which issued a joint statement saying Bork’s comment “reflects an incomprehensible insensitivity to the plight of a women. [...] To require a woman to choose either to accept financial disaster or to make an irrevocable decision never to have children is cruel beyond measure,” said the statement delivered by Linda Dorian, executive director of the National Federation of Business and Professional Women.
[Sen. Howard Metzenbaum, D-Ohio] later presented a telegram from one of the women involved in the case. “I cannot believe that Judge Bork thinks we were glad to have the choice of getting sterilized or getting fired. [...] I was only 26 years old but I had to work so I had no choice. [...] I still believe it’s against the law, whatever Bork says,” wrote Betty J. Riggs of Parrisville, West Virginia.
I believe Riggs is right–at least she would be, if the case came up today. The EEOC requires employers to make reasonable accommodations to employees who have legitimate concerns about the nature of work they are asked to do. Of course, some conservatives echo Bork’s callous unconcern for the right of employees to make their own personal health decisions without input from their employer. That’s why we have Republicans supporting legislation that would allow your boss to pry into your personal medical decisions and to refuse to provide–or allow employees to select–any health insurance coverage that included birth control.
In short–as someone who was involved up to his eyeballs with Watergate, had contempt for women and minorities, opposed civil rights and human rights, opposed protecting the privacy of citizens, followed precedent except when he just didn’t feel like it, opposed free speech protections unless you happened to be talking about politics (his feigned moderation on this subject during his confirmation hearings soon proved to be a sham), wished to meddle in women’s reproductive choices, and who coddled corporations whenever he could–I will not miss Robert Bork. I think he had a corrosive, destructive, terrible impact on our justice system, and I will consider any politician who ever cites him as a hero or positive influence to be reprehensible beyond redemption.