Robert Heron Bork (March 1, 1927 – December 19, 2012) was an American legal scholar who advocated the judicial philosophy of originalism. Bork formerly served as a Yale Law School professor, 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.
Bork attended the Hotchkiss School in Lakeville, Connecticut and earned bachelor's and law degrees from the University of Chicago. While pursuing his bachelor's degree he became a brother of the international social fraternity of Phi Gamma Delta. While pursuing his law degree he served on Law Review. At UChicago he was awarded a Phi Beta Kappa key with his law degree in 1953 and passed the bar in Illinois that same year. 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. Among his students during this time were Bill Clinton, Hillary Rodham Clinton, Anita Hill, Robert Reich, Jerry Brown, John R. Bolton, Samuel Issacharoff, and Cynthia Estlund.
Advocacy of originalism
Bork was best known for his theory that the only way to reconcile the role of the judiciary in the U.S. 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 judgments. Bork once said, "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else."
Bork built on the influential critiques of the Warren Court authored by Alexander Bickel, who cfiticized the Supreme Court under Earl Warren for shoddy and inconsistent reasoning, undue activism, and misuse of historical materials. Bork's critique was harder-edged than Bickel's, however, and 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 Justic William Rehnquist of the U.S. Supreme Court, and sparked a vigorous debate within legal academia about how the Constitution is to be interpreted.
Some conservatives criticized Bork's approach. Conservative scholar Harry Jaffa criticized Bork (along with Rehnquist and Scalia) for failing to adhere to natural law principles. Noted jurisprudential scholar Robert P. George explained Jaffa’s critique this way: "He attacks Rehnquist and Scalia and Bork for their embrace of legal positivism that is inconsistent with the doctrine of natural rights that is embedded in the Constitution they are supposed to be interpreting."
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.
Solicitor General
Bork served as Solicitor General in the U.S. Department of Justice from June 1973 to 1977. As Solicitor General, Bork argued several high profile cases before the Supreme Court in the 1970s, including 1974's
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. Bork hired many young attorneys as Assistants who went on to have remarkable careers, including Judges Danny Boggs and Frank H. Easterbrook as well as Robert Reich, later Secretary of Labor in the Clinton Administration.
"Saturday Night Massacre"
On October 20, 1973, Solicitor General Bork was instrumental in the "Saturday Night Massacre", U.S. President Richard Nixon’s's firing of Watergate Special Prosecutor Archibald Cox, following Cox's request for tapes of his Oval Office conversations. Nixon initially ordered U.S. Attorney General, Elliot Richardson, to fire Cox. Richardson resigned rather than carry out the order. Richardson's top deputy, Deputy Attorney General William Ruckelshaus, also considered the order "fundamentally wrong" and also resigned, making Bork the Acting Attorney General. When Nixon reiterated his order, Bork complied and fired Cox, an act later found to be illegal in November of that year in a suit brought by Ralph Nader. Bork remained Acting Attorney General for approximately eight weeks, until the appointment of William B. Saxbe on December 17, 1973.
United States Circuit Judge
Bork was a circuit judge for the United States Court of Appeals for the District of Columbia Circuit between 1982 and 1988. He was nominated by President Reagan on December 7, 1981, was confirmed by the Senate on February 8, 1982, and received his commission on February 9, 1982.
One of his opinions while on the D.C. Circuit was
Dronenburg v. Zech, 741 F.2d 1388, decided in 1984. This case involved James L. Dronenburg, a sailor who had been administratively discharged from the Navy for engaging in homosexual conduct.
Dronenburg argued that his discharge violated his right to privacy. This argument was rejected in an opinion written by Bork and joined by Antonin Scalia, in which Bork critiqued the line of Supreme Court cases upholding a right to privacy.
In rejecting Dronenburg's suggestion for a rehearing
en banc, the D.C. Circuit issued four separate opinions, including one by Bork (again joined by Scalia), who wrote that "no principle had been articulated [by the Supreme Court] that enabled us to determine whether appellant's case fell within or without that principle."
Supreme Court nomination
President Reagan nominated Bork for Associate Justice of the Supreme Court on July 1, 1987. A hotly contested United States Senate debate over Bork's nomination ensued. Opposition was partly fueled by strong opposition by civil and women's rights groups concerned with Bork's opposition to the authority claimed by the federal government to impose standards of voting fairness upon the states (at his confirmation hearings for the position of Solicitor General, he supported the rights of Southern states to impose a poll tax), and his stated desire to roll back civil rights decisions of the Warren and Burger courts. Bork was one of only three Supreme Court nominees, along with William Rehnquist and Samuel Alito, to ever be opposed by the American Civil Liberties Union. Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy", most notably, according to critics, for his role in the Saturday Night Massacre.
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. Nevertheless, Reagan nominated Bork for the seat on July 1, 1987.
Following Bork's nomination to the Court, Sen. Ted Kennedy took to the Senate floor with a strong condemnation of Bork declaring:
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.
Bork responded, "There was not a line in that speech that was accurate."[23] In an obituary of Kennedy, The Economist remarked that Bork may well have been correct, "but it worked." 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."
Television advertisements 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 two and a half 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 rights 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 (R-PA), Robert Stafford (R-VT), John Warner (R-VA), and Lowell P. Weicker, Jr. (R-CT)) all voting against him.
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.
Death
Bork died of complications from heart disease at the Virginia Hospital Center in Arlington, Virginia, on December 19, 2012. Following his death, Scalia referred to Bork as "one of the most influential legal scholars of the past 50 years" and "a good man and a loyal citizen." Mike Lee, Senator from Utah, called Bork "one of America's greatest jurists and a brilliant legal mind."
http://en.wikipedia.org/wiki/Robert_Bork
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