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Robert Bork
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Robert Heron Bork (born March 1, 1927) is a conservative American legal scholar who advocates 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.
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Robert Heron Bork (born March 1, 1927) is a conservative American legal scholar who advocates 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. Currently, Bork is a lawyer, law professor, and author.
Early career and family
Bork was born in Pittsburgh, Pennsylvania. His father was Harry Philip Bork (1897–1974), a steel company purchasing agent, and his mother was the former Elisabeth Kunkle (1898–2004), a schoolteacher. He married Claire Davidson in 1952. She died of cancer in 1980. They had a daughter, Ellen, and two sons, Robert and Charles.
In 1982 he married Mary Ellen Pohl, a former Roman Catholic religious sister, who went on to become a Roman Catholic activist and member of the Board of the Catholic Campaign for America.
Bork attended the prestigious Hotchkiss School in Lakeville, Connecticut and earned bachelor's and law degrees from the University of Chicago, where he served on Law Review and 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. Among his students during this time were Bill and Hillary Rodham Clinton.
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 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 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, 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 Justice William Rehnquist of the U.S. Supreme Court, and sparked a vigorous debate within legal academia about how the constitution is to be interpreted.
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. 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.
As Solicitor General, Bork was instrumental in the "Saturday Night Massacre", the October 20, 1973 firing of Watergate Special Prosecutor Archibald Cox, following Cox's request for tapes of Oval Office conversations. U.S. President Richard Nixon initially ordered his Attorney General, Elliot Richardson, to fire Cox. Richardson resigned rather than carry out the order. Deputy Attorney General William Ruckelshaus, who considered the order "fundamentally wrong", followed this example. After these resignations, Bork became acting Attorney General. Though Bork believed Nixon's order to be valid and appropriate, he considered resigning to avoid being "perceived as a man who did the President's bidding to save my job". Richardson and Ruckelshaus told Bork he should not resign to avoid the damage a chain of resignations would do to the Department of Justice. When Nixon reiterated his order, Bork complied and fired Cox. He remained acting Attorney General until the appointment of William B. Saxbe on December 17 1973.
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 most significant 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 by Bork, in which he criticized the cases in which the Supreme Court had enunciated a right to privacy.
Supreme Court nomination
Supreme Court Justice Lewis Powell was a moderate, and even before his expected retirement on June 27, 1987, Senate Democrats had asked liberal leaders to form "a solid phalanx" to oppose whoever President Ronald Reagan nominated to replace him, assuming it would tilt the court rightward; Democrats warned Reagan there would be a fight. Reagan nominated Bork for the seat on July 1, 1987.
Within 45 minutes of Bork's nomination to the Court, Ted Kennedy (D-MA) took to the Senate floor with a strong condemnation of Bork in a nationally televised speech, 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."
A brief was prepared for Joe Biden, head of the Senate Judiciary Committee, called the Biden Report. Bork later said in his best-selling book The Tempting of America that the report "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 towards Kennedy's "Robert Bork's America" speech stunned the Reagan White House; though conservatives considered Kennedy's accusations slanderous, the attacks went unanswered for two and a half months.
A hotly contested United States Senate debate over Bork's nomination ensued, partly fueled 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. Bork is one of only three Supreme Court nominees to ever be opposed by the ACLU, along with William Rehnquist and Samuel Alito. Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy," as allegedly demonstrated by his role in the Saturday Night Massacre.
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. The list of rentals was originally printed by Washington D.C.'s City Paper.
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 left-wing 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. Senators David Boren (D-OK) and Ernest Hollings (D-SC) voted in favor, with Senators John Chafee (R-RI), Bob Packwood (R-OR), Richard Shelby (D-AL), Arlen Specter (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.
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, unhappy with his treatment in the nomination process, resigned his appellate-court judgeship in 1988.
"Bork" or "Borked" as verb
William Safire of The New York Times attributes "possibly" the first use of 'Borked' as a verb to The Atlanta
Journal-Constitution of August 20th, 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." This definition stems from the history of the fight over Bork's nomination. Bork was widely lauded for his competence, but reviled for his political philosophy. In March 2002, the word was added to the Oxford English Dictionary under "Bork"; its definition extends beyond judicial nominees, stating that people who bork others "usually [do so] with the aim of preventing [a person's] appointment to public office."
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 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 publicly criticized the nomination of Harriet Miers to the Supreme Court.
He has also 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 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 relatively recent 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 which 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.
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. The episode was largely seen as contrary to Bork's own legal philosophy, as he often criticized personal injury cases.
On June 7, 2007, Bork with several others authored an amici 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.
Selected writings
- Bork, Robert H. (1978). The Antitrust Paradox. New York: Free Press. ISBN 0-46-500369-9.
- 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.
See also
External links
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