Robert Heron Bork (born March 1, 1927) is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit. In 1987, he was nominated to the Supreme Court by President Ronald Reagan, but the Senate rejected his nomination. Bork had more success as an antitrust scholar, where his once-idiosyncratic view that antitrust law should focus on maximizing consumer welfare has come to dominate American legal thinking on the subject.
Antitrust scholar
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 and
Chicago School thinkers, were heavily influential in causing a shift in the U.S. Supreme Court's approach to antitrust laws since the 1970s. which his role in the
Saturday Night Massacre exemplified according to his critics.
Supreme Court Justice Lewis Powell was a moderate, and even before his expected retirement on June 27, 1987, some Senate Democrats had asked liberal leaders to form "a solid phalanx" to oppose whomever President Ronald Reagan nominated to replace him, assuming it would tilt the court rightward. Democrats also warned Reagan there would be a fight if Bork were nominated. Bork also contended in his best-selling book, The Tempting of America, that the brief prepared for Sen. Joe Biden, head of the Senate Judiciary Committee, "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility."
TV ads narrated by Gregory Peck attacked Bork as an extremist. Kennedy's speech successfully fueled widespread public skepticism of Bork's nomination. The rapid response to Kennedy's "Robert Bork's America" speech stunned the Reagan White House, and the accusations went unanswered for 2½ months.
During debate over his nomination, Bork's video rental history was leaked to the press. 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. Writer Michael Dolan, who obtained a copy of the hand-written list of rentals, wrote about it for the Washington City Paper. Dolan justified accessing the list on the ground that Bork himself had stated that Americans only had such privacy rights as afforded them by direct legislation. The incident led to the enactment of the 1988 Video Privacy Protection Act.
To pro-choice legal 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 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 criticism of the reasoning underlying Roe v. Wade.
On October 23, 1987, the Senate rejected Bork's confirmation, with 42 Senators voting in favor and 58 voting against. Two Democratic Senators David Boren (D-OK) and Ernest Hollings (D-SC) voted in his favor, with 6 Republican Senators John Chafee (R-RI), Bob Packwood (R-OR), Arlen Specter (then R-PA), Robert Stafford (R-VT), John Warner (R-VA) and Lowell P. Weicker, Jr. (R-CT) all voting nay.
The vacant seat on the court to which Bork was nominated eventually went to Judge Anthony Kennedy who was unanimously approved by the Senate, 97-0.
Bork, unhappy with his treatment in the nomination process, resigned his appellate-court judgeship in 1988.
Bork as verb
According to columnist
William Safire, the first published use of
bork as a verb was "possibly"
The Atlanta Journal-Constitution of August 20, 1987. Safire defines
to bork by reference "to the way Democrats savaged Ronald Reagan's nominee, the Appeals Court judge Robert H. Bork, the year before." Perhaps 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
Florynce 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. We're going to kill him politically ... This little creep, where did he come from?" Thomas was subsequently confirmed after one of the most divisive confirmation hearings in Supreme Court history.
In March 2002, the Oxford English Dictionary added an entry for the verb Bork as U.S. political slang, with this definition: "To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way."
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 Naples, FL.
Works and views
Bork has written several books, including the two best-sellers
The Tempting of America, about his judicial philosophy and his nomination battle, and
Slouching Towards Gomorrah: Modern Liberalism and American Decline, in which he argues that the rise of the
New Left in the 1960s in the U.S. has undermined the
moral standards necessary for
civil society, and spawned a generation of
intellectuals who oppose
Western civilization.
In The Tempting of America (page 82), Bork explained his support for the Supreme Court's desegregation decision in Brown v. Board of Education:
By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases . . . The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.
In 1999, Bork wrote an essay about Thomas More and attacked jury nullification as a "pernicious practice".
In 2003, he published Coercing Virtue: The Worldwide Rule Of Judges, an American Enterprise Institute book which includes Bork's philosophical objections to the phenomenon of incorporating international ethical and legal guidelines into the fabric of domestic law. In particular, he focuses on the problems he sees as inherent in the federal judiciary of three nations, Israel, Canada, and the United States, countries where he believes the courts have grossly exceeded their discretionary powers, and which have discarded precedent and common law, and in their place substituted their own liberal judgment.
Bork also advocates a modification to the Constitution that would allow Congressional super-majorities to override Supreme Court decisions, similar to the Canadian notwithstanding clause. Though Bork has many moderate critics, some of his arguments have earned criticism from conservatives as well. Although an opponent of gun control, 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.
Bork converted to Catholicism in 2003.
In October 2005, Bork publicly criticized the nomination of Harriet Miers to the Supreme Court.
On June 6, 2007, Bork filed suit in federal court in New York City against the Yale Club over an incident that had occurred a year earlier. Bork alleged that, while trying to reach the dais to speak at an event, he fell, because of the Yale Club's failure to provide any steps or handrail between the floor and the dais. According to the complaint, Bork's injuries required surgery, immobilized him for months, forced him to use a cane, and left him with a limp. In May, 2008, Bork and the Yale Club reached a confidential, out-of-court settlement.
On June 7, 2007, Bork with several others authored an amicus brief on behalf of Scooter Libby arguing that there was a substantial constitutional question regarding the appointment of the prosecutor in the case, reviving the debate that had previously resulted in the Morrison v. Olson decision.
On December 15, 2007, Bork endorsed Mitt Romney for President.
A 2008 issue of the Harvard Journal of Law and Public Policy collected essays in tribute to Bork. Authors included Frank H. Easterbrook, George Priest, and Douglas Ginsburg.
In popular culture
The look of the character
Judge Roy Snyder on
The Simpsons is modeled on Robert Bork. The character judge is known for his lenient punishments.
Selected writings
Bork, Robert H. (1978). The Antitrust Paradox. New York: Free Press. ISBN 0-465-00369-9.
Bork, Robert H. (1990). The Tempting of America. New York: Free Press. ISBN 0-684-84337-4.
Bork, Robert H. (1993). The Antitrust Paradox (second edition). New York: Free Press. ISBN 0-02-904456-1.
Bork, Robert H. (1996). Slouching Towards Gomorrah: Modern Liberalism and American Decline. New York: ReganBooks. ISBN 0-06-039163-4.
Bork, Robert H. (2003). Coercing Virtue: The Worldwide Rule of Judges. Washington, D.C.: American Enterprise Institute Press. ISBN 0-8447-4162-0.
Bork, Robert H. (Ed.) (2005). A Country I Do Not Recognize: The Legal Assault On American Values. Stanford: Hoover Institution Press. ISBN 0-8179-4602-0.
Bork, Robert H. (2008) A Time to Speak: Selected Writings and Arguments. Wilmington, Del.: ISI Books. ISBN10/13: 1933859687 / 9781933859682
See also
Aaron Director
List of failed nominations to the Supreme Court of the United States
Swiftboating
Gerald Ford Supreme Court candidates
Ronald Reagan Supreme Court candidates
References
Notes
External links
A Conversation with Judge Robert H. Bork - Event Video, Federalist Society, 2007-06-26
Congressional Record: Floor Vote on Bork Nomination
Think Tank Biography: Robert Bork
Bork, Robert H. (1996) Our Judicial Oligarchy . 1996 First Things November .
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