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Robert Bork Dead at 85

Robert Bork, the controversial jurist whose failed Supreme Court bid ushered in a new climate in American politics, has died at 85. A brilliant legal mind, his legacy is clouded by his role in the Saturday Night Massacre and some rather kooky writings after the Senate rejected his confirmation.

Here’s the opener to several major obituaries.

Washington Post (“Judge Robert H. Bork, conservative icon, dies at 85“):

Robert H. Bork, the conservative jurist who fired Watergate special prosecutor Archibald Cox during the “Saturday Night Massacre” in 1973 and whose failed nomination to the U.S. Supreme Court in 1987 sparked an enduring political schism over judicial nominations, died early Wednesday at Virginia Hospital Center in Arlington of complications from heart disease. He was 85.

The death was confirmed by Mr. Bork’s daughter-in-law, Diana Culp Bork.

For decades, Judge Bork was a major architect of the conservative rebuttal to what he considered liberal judicial activism. He criticized civil rights legislation and rulings in cases involving the “one man, one vote” principle and the constitutional right to privacy.

His unrelenting calls for judicial restraint and his opposition to “imperialistic” liberal judges, who he said read their values into the Constitution, made him an iconic figure in conservative legal circles.

In his writings and in debates on legal doctrine, the burly, bearded, chain-smoking ex-Marine was sharply confrontational. But friends and enemies alike found him a man of great charm, compassion and intellect, with a wit so sharp a close friend once called it dangerous.

New York Times (“Robert H. Bork, Conservative Jurist, Dies at 85“):

Robert H. Bork, a former solicitor general, federal judge and conservative legal theorist whose 1987 nomination to the United States Supreme Court was rejected by the Senate in a historic political battle whose impact is still being felt, died on Wednesday in Arlington, Va. He was 85.

Judge Bork’s death, of complications of heart disease, was confirmed by his son Robert H. Bork Jr.

Judge Bork, who was senior judicial adviser this year to the presidential campaign of Gov. Mitt Romney, played a small but crucial role in the Watergate crisis as the solicitor general under President Richard M. Nixon. He carried out orders to fire a special prosecutor in what became known as “the Saturday Night Massacre.” He also handed down notable decisions from the federal appeals court bench. But it was as a symbol of the nation’s culture wars that Judge Bork made his name.

It is rare for the Senate in its constitutional “advice and consent” role to turn down a president’s Supreme Court nominee, and rarer still for that rejection to be based not on qualifications but on judicial philosophy and temperament. That turned Judge Bork’s defeat into a watershed event and his name into a verb: getting “borked” is what happens to a nominee rejected for what supporters consider political motives.

The success of the anti-Bork campaign is widely seen to have shifted the tone and emphasis of Supreme Court nominations since then, giving them an often strong political cast and making it hard, many argue, for a nominee with firmly held views ever to get confirmed.

Till the end of his life, Judge Bork argued that American judges, acting to please a liberal elite, have hijacked the struggle over national values by overstepping their role, especially in many of the most important decisions on civil rights and liberties, personal autonomy and regulation of business.

He advocated a view of judging known as “strict constructionism,” or “originalism,” because it seeks to limit constitutional values to those explicitly enunciated by the Framers and to reject those that evolved in later generations. He dismissed the view that the courts had rightly come to the aid of those neglected by the majority. By contrast, he felt that majorities, through legislatures, should be empowered to make all decisions not specifically addressed in the Constitution.

He most famously took issue with the Supreme Court’s assertion in the 1960s and ’70s that the Constitution implicitly recognizes a right of privacy that bars states from outlawing abortion or the use of contraceptives by married couples.

That position along with his rejection of court-mandated help to minority groups led a coalition of liberal groups to push successfully for his Senate defeat, motivated in no small part by their sense that he cared more about abstract legal reasoning than the people affected by it. They contended that his confirmation would produce a radical shift on a closely divided Supreme Court and “turn back the clock” on civil and individual rights.

Fox News (“Robert Bork, former Supreme Court nominee, dies“) has a somewhat more flattering take:

Robert Bork, the former federal judge whose Reagan-era nomination to the Supreme Court touched off one of the roughest confirmation battles in modern U.S. history, has died.

Family members said Bork, 85, died early Wednesday morning. He had a history of heart problems and chronic obstructive pulmonary disease, a lung condition.

His funeral is scheduled for Saturday, and family members said there would be a memorial but did not say whether it would be open to the public.

Bork was among the most polarizing figures in American law and conservative politics for more than four decades. When Bork was solicitor general in 1973, he fired Archibald Cox as a special prosecutor on the order of President Richard Nixon to help in the Watergate cover-up.

President Ronald Reagan nominated Bork to the U.S. Supreme Court in 1987. In a 58-to-42 vote, the Senate rejected his nomination — it was by one of the widest margins in U.S. history.

Critics called Bork a free-speech censor and a danger to the principle of separation of church and state. Bork’s opponents used his prolific writings against him, and some called him a hypocrite when he seemed to waffle on previous strongly worded positions.

Stoic and stubborn throughout, Bork refused to withdraw when his defeat seemed assured. The fight has defined every high-profile judicial nomination since, and largely established the opposing roles of vocal and well-funded interest groups in Senate nomination fights.

Republicans have long said his defeat was a completely partisan move and have said Bork was one of the greatest conservative figures in history.

“The highest court in our land will not enjoy the services of one of the finest men every put forward for a place on its bench,” Reagan said after Bork’s defeat. “Judge Bork will be vindicated in history.”

Los Angeles Times (“Robert Bork, failed Supreme Court nominee, dies at age 85“):

Robert H. Bork, whose failed Supreme Court nomination in 1987 infuriated conservatives and politicized the confirmation process for the ensuing decades, died Wednesday at the age of 85.

The former Yale law professor and judge on the U.S. Court of Appeals for the D.C. Circuit had a history of heart problems and had been in poor health for some time.

But Bork was a towering figure for an early generation of conservatives. In the 1960s and ’70s, he argued that a liberal-dominated Supreme Court was abusing its power and remaking American life by ending prayers in public schools, by extending new rights to criminals, by ordering cross-town busing and by voiding the laws against abortion.

He was an influential legal advisor in the Nixon administration and served as a footnote to history in the Watergate scandal. When the embattled president ordered the firing of special counsel Archibald Cox, the attorney general and his deputy resigned in protest. Bork, who was in the No. 3 post as U.S. solicitor general, then carried out Nixon’s order.

But Bork’s biggest moment came during the Reagan administration in the 1980s. He left Yale and came to Washington when Reagan appointed him to the U.S. court of appeals in the District of Columbia. The job was seen as a steppingstone to the high court.

In 1986, Bork was passed over for a younger colleague when Reagan named Judge Antonin Scalia to the Supreme Court. A year later, Bork’s turn came when Justice Lewis Powell, the swing vote on the closely divided court, announced his retirement.

Democrats, led by Sen. Edward Kennedy, launched an all-out attack on Bork’s nomination, saying he would set back the cause of civil rights, women’s rights and civil liberties.

The summer of 1987 saw campaign-style attacks on Bork’s reputation. In televised hearings, the bearded, heavy-set professor tried to explain his views, but he won few converts. The Senate defeated his nomination by a 58-42 vote.

The last of those, incidentally, strikes me as the fairest, most accurate presentation, if not the nicest headline. WaPo’s leading with the Archibald Cox firing, which wasn’t even central in his losing the nomination, is somewhat unfair.

Not all that long ago, I shared the conventional Republican view that Bork was railroaded. Even in hindsight, he strikes me as a more brilliant legal mind than Anthony Kennedy, who eventually got the vacancy. But, while I still don’t think the process was right—and still find Teddy Kennedy’s tirade during the hearings positively shameful—the Senate likely did us a favor in rejecting Bork. As cantankerous as Scalia can be, he’s ultimately a sound jurist and one who cares very much about the legacy of the Court. Bork, by contrast, was an ideologue first and foremost.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He has a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. legion says:

    One can be both a “brilliant legal mind” and also a tragic mistake as a judge.

    Highly-rated. Helpful or Unhelpful: Thumb up 15 Thumb down 0

  2. Tsar Nicholas says:

    What’s crazy ironic about the whole Bork fiasco is that if Team Reagan had been a little more savvy and had nominated Harvie Wilkinson, or Ken Starr, or Frank Easterbrook, or Edith Jones, or Alex Kozinski, or Danny Boggs, hell, or any one of a dozen other viable candidates, the entire Star Chamber thing almost certainly would have been avoided, and the country ultimately would have had the benefit of a far better overall jurist than Kennedy. Then you also have to factor in the respective ages of the aforementioned circuit judges back in the mid-1980’s. They were all so young back then even today they’d still be young enough effectively to serve for another decade or two. Boggles the mind.

    The right side of the chattering classes never discusses this, but the reality is that from the get-go with the Bork nomination Team Reagan royally screwed up.

    Like or Dislike: Thumb up 3 Thumb down 0

  3. Chris Berez says:

    Bork was an authoritarian and a theocrat and as the years passed he only became more and more extreme in his views. Rejecting him for SCOTUS is one of the biggest bullets we’ve ever dodged as a nation. I think the fact that the right continues to hold him up as one of their patron saints is yet another indication of what’s wrong with the contemporary conservative movement.

    Highly-rated. Helpful or Unhelpful: Thumb up 29 Thumb down 0

  4. Geek, Esq. says:

    We dodged a bullet with that guy. I’m very happy he was able to live a long and prosperous life in the private sector, where he belonged.

    Like or Dislike: Thumb up 8 Thumb down 0

  5. grumpy realist says:

    As a woman, I found Bork a disgrace as a jurist. He was a “conservative” all right. Conserving the rights of white rich men in a position of power against everyone else.

    Like or Dislike: Thumb up 11 Thumb down 1

  6. bk says:

    As cantankerous as Scalia can be, he’s ultimately a sound jurist

    lol whut???

    Like or Dislike: Thumb up 14 Thumb down 0

  7. PJ says:

    .

    Like or Dislike: Thumb up 4 Thumb down 0

  8. CSK says:

    This is a trivial observation–a specialty of mine–but the fact that he looked like Mephistopheles probably didn’t help his cause.

    Like or Dislike: Thumb up 4 Thumb down 0

  9. Woody says:

    Condolences to Mr Bork’s family.

    I’m bemused at the Scalia comment, though, Dr Joyner – I would think Bush v. Gore and Citizens United would have put to rest any notions of Scalia’s commitment to constructionist jurisprudence.

    Like or Dislike: Thumb up 14 Thumb down 0

  10. gVOR08 says:

    Reagan said after Bork’s defeat. “Judge Bork will be vindicated in history.”

    Saint Ronald seems to have gotten that call wrong.

    Like or Dislike: Thumb up 6 Thumb down 0

  11. wr says:

    Why is it that Republicans always find it “shameful” when someone accurately describes the effects of the policies they’re calling for?

    What did Kennedy say that was wrong? How did he misconstrue the actual impact of a Bork on the court?

    What’s shameful is the way that Republicans demand respect for their ideas while distancing themselves from the obvious consequences.

    And what’s truly shameful is that 42 senators voted to put this man on the supreme court.

    Like or Dislike: Thumb up 10 Thumb down 0

  12. rudderpedals says:

    I’m going to have to call out was left of Reagan for ruining this man’s life when he lifted him from the appellate bench to a position he was obviously not suited for, but more so for setting the precedent of nominating radical reactionaries to the Court.

    Like or Dislike: Thumb up 5 Thumb down 0

  13. swbarnes2 says:

    WaPo’s leading with the Archibald Cox firing, which wasn’t even central in his losing the nomination, is somewhat unfair.

    Why? He didn’t make it onto the Supreme Court, after all. But he did fire Cox. He was the coward who tried to help cover up Nixon’s wrongdoing, while two other people suffered the consequences of refusing to obey. A judge later ruled that Bork’s firing of Cox was illegal. Why shouldn’t his flagrant breaking of the law be at the top of his accomplishments?

    Like or Dislike: Thumb up 10 Thumb down 0

  14. wr says:

    @swbarnes2: “Why shouldn’t his flagrant breaking of the law be at the top of his accomplishments?”

    Because it’s okay if you’re a Republican.

    Like or Dislike: Thumb up 7 Thumb down 0

  15. de stijl says:

    No one with facial hair that obscure should have the agency to adjudicate how lady parts should be managed. Good call, Teddy Kennedy!

    Like or Dislike: Thumb up 0 Thumb down 0

  16. de stijl says:

    JJ sez:

    As cantankerous as Scalia can be, he’s ultimately a sound jurist and one who cares very much about the legacy of the Court.

    @bk:

    lol whut???

    Mega dittos.

    Like or Dislike: Thumb up 1 Thumb down 0

  17. de stijl says:

    @gVOR08:

    Saint Ronald seems to have gotten that call wrong.

    The abject worship of Reagan by some folks infuriates me. How could anyone literally adore a President who authorized the sale of weapons to a sworn enemy who had stormed our embassy and imprisoned our diplomatic staff just years ago, so he could fund an undeclared and illegal war?

    In his defense, though, he was very likely mentally and legally incompetent at the time. He most certainly was when he was later questioned on he matter.

    That that sworn enemy is now considered to be an existential threat – to ourselves and to our client / master in the Near East – by those same idolators? Unacknowledged. Chucked down the memory hole. It’s like rain on your wedding day.

    How Reagan came to be named “Ronaldus Magnus” baffles the eff out of me. Greg Stillson mother-effer.

    Conservatives should puke on his grave.

    Like or Dislike: Thumb up 5 Thumb down 0

  18. I had Judge Bork for a semester of Constitutional Law at George Mason University Law School back in 1991 (1st semester, 2nd year). The material we covered this semester — Commerce Clause, Separation Powers, and such — was rather dry at times, as was Bork’s teaching style but, after a couple weeks, the ice seemed to break and he ended up having a rather amusing dry wit that would slip in every now and then.

    This also happened to coincide, of course, with the confirmation hearings for Clarence Thomas and the Anita Hill fiasco, which made for some interesting commentary.

    Like or Dislike: Thumb up 3 Thumb down 0

  19. grumpy realist says:

    @Doug Mataconis: There are two people I’d like see raised to the bench. One is Posner, because I think he’s got some interesting ideas, changes his theories to fit reality, and because it would piss off the cranks on both sides. The other person I would love to see on the Supreme Court is Moore, because she’s damn good at patent law and we desperately need someone who understands IP on SCOTUS.

    Like or Dislike: Thumb up 0 Thumb down 0

  20. Gustopher says:

    I wish Bjork would sing at Bork’s funeral.

    Like or Dislike: Thumb up 5 Thumb down 0

  21. @grumpy realist:

    Posner is an interesting character. In the intellectual legal community he’s best known as one of the leading lights of a school that has taken on the somewhat misleading moniker of Law & Economics, which is roughly defined as the application of economic principles to the law. He’s written a number of books that a meant to be accessible to the general public that are fairly interesting, including one called Reason & Sex that took a very libertarian view toward the legal treatment of private consensual relationships at a time long before Lawrence v. Texas was decided.

    In more recent years, he’s waged a battle that I think is more professorial than anything else with Scalia over some cases. And, just last week, he wrote the majority opinion in a 7th Circuit Court of Appeals decision that struck down an Illinois law barring licensed firearms owners from carrying a concealed weapon.

    Like or Dislike: Thumb up 2 Thumb down 0

  22. If you had to ask me what I thought which moment it was that Bork’s Superme Court nomination was doomed, I would say that it came when, in response to a question from a Senator whose name I cannot recall, he remarked that being on the Supreme Court would be, and I am paraphrasing here, ‘an interesting intellectual experience.’

    I was barely out of High School at the time, but even I knew that this was a completely stupid response to a very important question.

    Like or Dislike: Thumb up 5 Thumb down 0

  23. @Gustopher:

    I see what you did there

    Like or Dislike: Thumb up 1 Thumb down 0

  24. sam says:

    “WaPo’s leading with the Archibald Cox firing, which wasn’t even central in his losing the nomination, is somewhat unfair.

    That episode fixed my opinion of Bork in amber:

    The “Saturday Night Massacre” was the term given by political commentators to U.S. President Richard Nixon’s executive dismissal of independent special prosecutor Archibald Cox, and the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus on October 20, 1973 during the Watergate scandal.

    Richardson appointed Cox in May of that year, after having given assurances to the House Judiciary Committee that he would appoint a special prosecutor to investigate the events surrounding the Watergate break-in of June 17, 1972. The appointment was created as a Career Reserved position in the Justice department, which meant (a) it came under the authority of the Attorney General, and (b) the incumbent could not be removed for any reason other than “for cause” (e.g. gross improprieties or malfeasance in office). Richardson had, in his confirmation hearings before the U.S. Senate, given the explicit promise not to use his ministerial authority to dismiss the Watergate Special Prosecutor, unless for cause.

    When Cox issued a subpoena to President Nixon, asking for copies of taped conversations recorded in the Oval Office and authorized by Nixon as evidence, the president initially refused to comply. On Friday, October 19, 1973, Nixon offered what was later known as the Stennis Compromise – asking U.S. Senator John C. Stennis to review and summarize the tapes for the special prosecutor’s office. Since Stennis was famously hard-of-hearing, Cox refused the compromise that same evening and it was believed that there would be a short rest in the legal maneuvering while government offices were closed for the weekend.

    However, the following day Nixon ordered Attorney General Richardson to fire Cox. Richardson refused, and resigned in protest. Nixon then ordered Deputy Attorney General William Ruckelshaus to fire Cox. He also refused and resigned.

    Nixon then ordered the Solicitor General, Robert Bork (as acting head of the Justice Department) to fire Cox.

    Which he did. Shameful act.

    Like or Dislike: Thumb up 7 Thumb down 0

  25. OzarkHillbilly says:

    Thank God… or FSM.

    Like or Dislike: Thumb up 0 Thumb down 0

  26. legion says:

    @sam:

    Shameful act.

    Not just shameful, but cowardly and unprofessional, considering it was later declared to be an illegal firing. I bet he and John Yoo were great pals.

    Like or Dislike: Thumb up 6 Thumb down 0

  27. KansasMom says:

    @de stijl: Smith v. Oregon will always be my favorite wacko Scalia decision. In essence he said “Your religion is weird, involves something I know nothing about other than fact that it might make you feel good and that is waaaay different than the thing my religion uses to make us feel good so no free exercise for you!”

    Like or Dislike: Thumb up 4 Thumb down 0

  28. michael reynolds says:

    I’m impressed by your analysis James.

    We dodged a bullet with this guy.

    Like or Dislike: Thumb up 0 Thumb down 0

  29. Ken says:

    @wr: What’s shameful is the way that Republicans demand respect for their ideas while distancing themselves from the obvious consequences.

    And what’s truly shameful is that 42 senators voted to put this man on the supreme court.

    What’s truly shameful is that some of them are still in office

    Like or Dislike: Thumb up 1 Thumb down 0

  30. Mikey says:

    Jeffrey Rosen at The New Republic has an interesting take on Bork’s confirmation hearings and the legacy they left us.

    We’re Still Paying the Price for the Borking of Robert Bork

    From Rosen’s piece:

    The Borking of Bork was the beginning of the polarization of the confirmation process that has turned our courts into partisan war zones, resulting in more ideologically divided opinions and less intellectually adventurous nominees on the left and the right. It led to the rise of right-wing and left-wing judicial interest groups, established for the sole purpose of enforcing ideological purity and discouraging nominees who have shown any hint of intellectual creativity or risk-taking.

    Like or Dislike: Thumb up 0 Thumb down 0

  31. legion says:

    @Mikey: Rosen’s way off. It’s not that Bork was, in Rosen’s words, “treated unfairly” in the confirmation process – it’s that he was a dishonestly presented candidate who never should have submitted in the first place. The “Borking of Bork” was not the beginning of the polarization, it was the choice of Bork – who was never going to be anything more than a partisan agent. The fact that the confirmation process made this apparent is not a problem with the confirmation process…

    Like or Dislike: Thumb up 1 Thumb down 0

  32. Barry says:

    James Joyner: “Not all that long ago, I shared the conventional Republican view that Bork was railroaded. Even in hindsight, he strikes me as a more brilliant legal mind than Anthony Kennedy, who eventually got the vacancy. But, while I still don’t think the process was right—and still find Teddy Kennedy’s tirade during the hearings positively shameful—the Senate likely did us a favor in rejecting Bork. As cantankerous as Scalia can be, he’s ultimately a sound jurist and one who cares very much about the legacy of the Court. Bork, by contrast, was an ideologue first and foremost.”

    Please note that Bork got his ‘up or down’ vote, and the only things used against him were his actual beliefs. Fair as can be.

    Please also note that Bork was one of Nixon’s criminal henchmen, and should have done hard time.

    Like or Dislike: Thumb up 2 Thumb down 0

  33. Mikey says:

    @legion:

    It’s not that Bork was, in Rosen’s words, “treated unfairly” in the confirmation process – it’s that he was a dishonestly presented candidate who never should have submitted in the first place.

    I disagree. Bork was treated extremely unfairly, his positions distorted beyond recognition, buried in an avalanche of dishonest hyperbole. His confirmation battle was the beginning of dumbed-down soundbite politics. It was a disgrace, and I say that as someone who disagreed with a great deal of what he wrote, his views on Constitutional protections of privacy in particular.

    But Rosen’s not the only liberal who holds this opinion. Joe Nocera at The New York Times wrote something this past October:

    The Ugliness All Started With Bork

    Like or Dislike: Thumb up 0 Thumb down 0

  34. Mikey says:

    Also, before anyone asserts otherwise: I am not holding that Bork should have been confirmed. I opposed his nomination at the time, and I haven’t changed my mind in the last 24 years. What I’m saying is, even the end of keeping Bork off the court did not justify the means that were used to achieve it, and that those means did deep and lasting damage to American political discourse. And we’ve ended up with a less effective and more polarized judiciary because of it.

    Like or Dislike: Thumb up 0 Thumb down 0

  35. al-Ameda says:

    Two things come to mind: (1) Bork was an in-your-face nomination by the GOP – He was the guy who carried out Nixon’s orders to fire Richardson and Cox in order to suppress the Watergate investigation, and (2) Bork would have been as conservative and “originalist” as Scalia and Thomas are today.

    Like or Dislike: Thumb up 2 Thumb down 0

  36. swbarnes2 says:

    @Mikey:

    Bork was treated extremely unfairly, his positions distorted beyond recognition, buried in an avalanche of dishonest hyperbole.

    Is is hyperbole to say that he opposed the Civil Rights Act?

    Are you sure you want to defend a guy who opposed the Civil Rights Act?

    Like or Dislike: Thumb up 2 Thumb down 0

  37. Mikey says:

    @swbarnes2:

    Is is hyperbole to say that he opposed the Civil Rights Act?

    Are you sure you want to defend a guy who opposed the Civil Rights Act?

    I’m not defending him. As I said just a short scroll up the page, I opposed his nomination and haven’t changed my opinion in the 24 years since.

    I’m stating a simple fact: the way the Democrats handled his confirmation hearing was despicable and resulted in deep and lasting damage to American political discourse. And I don’t think even keeping Bork off the High Court was worth it.

    You may think it was, and of course you are entitled to think that., so we’d disagree. But I’m not defending anything except my opinion on the negative impact of his confirmation hearing.

    Like or Dislike: Thumb up 0 Thumb down 0

  38. An Interested Party says:

    And we’ve ended up with a less effective and more polarized judiciary because of it.

    Ahhh…Scalia, Thomas, and their ilk would be so much more reasonable if only Bork had gotten a seat on SCOTUS…

    Like or Dislike: Thumb up 2 Thumb down 0

  39. Mikey says:

    @An Interested Party: This has nothing to do with Thomas or Scalia specifically. It’s above them, in the “meta” frame of how SCOTUS justices are nominated and confirmed.

    Like or Dislike: Thumb up 0 Thumb down 0