Robert Bork

Robert Bork
Robert Bork
Judge of Court of Appeals for the District of Columbia Circuit
In office
February 9, 1982 – February 5, 1988
Nominated by Ronald Reagan
Preceded by Carl McGowan
Succeeded by Clarence Thomas
United States Attorney General
In office
October 20, 1973 – December 17, 1973
President Richard Nixon
Preceded by Elliot Richardson
Succeeded by William Saxbe
United States Solicitor General
In office
June 1973 – January 20, 1977
President Richard Nixon
Gerald Ford
Preceded by Erwin Griswold
Succeeded by Wade McCree
Personal details
Born March 1, 1927 (1927-03-01) (age 84)
Pittsburgh, Pennsylvania, U.S.
Political party Republican
Spouse(s) Claire Davidson (1952–1980)
Mary Ellen Pohl (1982–present)
Alma mater University of Chicago
Religion Roman Catholicism

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.[1] Currently, Bork is a lawyer, law professor, and bestselling 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 Elisabeth Kunkle (1898–2004), a schoolteacher. He was married to Claire Davidson from 1952 until 1980, when she died of cancer. They had a daughter, Ellen, and two sons, Robert and Charles. In 1982 he married Mary Ellen Pohl,[2] a Roman Catholic religious sister turned activist.[3]

Bork attended the Hotchkiss School in Lakeville, Connecticut[4] 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 UC 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 and John R. Bolton.[5][6]

Advocacy of originalism

Bork is 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."[7]

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.

Some conservatives have criticized Bork's approach. Conservative scholar Harry Jaffa has criticized Bork (along with Rehnquist and Scalia) for failing to adhere to natural law principles.[8] 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."[8]

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.[9][10]

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.

On October 20, 1973, Solicitor General Bork was instrumental in the "Saturday Night Massacre", U.S. President Richard Nixon'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"[11] and also resigned, making Bork the Acting Attorney General. Bork was also planning on resigning, but Richardson and Ruckelshaus persuaded Him to stay on in order to ensure continuity of leadership at the top of the Justice Department. When Nixon reiterated his order, Bork complied and fired Cox.[11] Bork remained Acting Attorney General for approximately eight weeks, 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 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 (now U.S. Supreme Court Justice) 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 Justice Scalia), who wrote: "no principle had been articulated [by the Supreme Court] that enabled us to determine whether appellant's case fell within or without that principle."[12]

Supreme Court nomination

Bork (right) with President Ronald Reagan, 1987

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),[13] and his stated 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 American Civil Liberties Union, along with William Rehnquist and Samuel Alito.[14] Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy",[11] most notably, according to critics, for his role in the Saturday Night Massacre, albeit not in a completely willing role.

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[citation needed]. Democrats also warned Reagan there would be a fight if Bork were nominated.[15] 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.[16][17]

Bork responded, "There was not a line in that speech that was accurate."[18] In an obituary of Kennedy, The Economist remarked that Bork may well have been correct, "but it worked."[18] Bork also contended in his best-selling[19] 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."[20]

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.[21]

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.[22] 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."[23] 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?"[24] 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."[25]

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".[26]

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 liberal critics, some of his arguments have earned criticism from conservatives as well. Although an opponent of gun control,[27] 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.[28]

Bork converted to Catholicism in 2003.[29]

In October 2005, Bork publicly criticized the nomination of Harriet Miers to the Supreme Court.[30][31]

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.[32] 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.[33] In May, 2008, Bork and the Yale Club reached a confidential, out-of-court settlement.[34]

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.[35]

On December 15, 2007, Bork endorsed Mitt Romney for President. He repeated this endorsement on August 2, 2011.

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.[36]

Selected writings

See also



  1. ^ Frum, David (2000). How We Got Here: The '70s. New York, New York: Basic Books. p. 327. ISBN 0465041957 
  2. ^ Vile 2003, p. 111
  3. ^ Beckwith, David (1987-09-21). "A Long and Winding Odyssey". Time.,8816,965540,00.html. Retrieved 2009-03-20. 
  4. ^ Bronner 2007, p. 43
  5. ^ Redirecting
  6. ^
  7. ^ Dennis J. Goldford (2005). The American Constitution and the Debate Over Originalism. Cambridge University Press. p. 174. ISBN 9780521845588. Retrieved 2008-10-26 
  8. ^ a b Linstrum, Erik (2003-09-30). "Political scholar Jaffa defends moral foundation of government". The Daily Princetonian. Retrieved 2010-12-11 
  9. ^ Gerhart, Peter M. (1982). "The Supreme Court and Antitrust Analysis: The (Near) Triumph of the Chicago School". The Supreme Court Review 1982: 319–349. JSTOR 3109560 .
  10. ^ Fox, Eleanor M. (1987). "The Battle for the Soul of Antitrust". California Law Review 75 (3): 917–923. doi:10.2307/3480656. JSTOR 3480656 .
  11. ^ a b c Noble, Kenneth B. (July 26, 1987). "New Views Emerge of Bork's Role in Watergate Dismissals". The New York Times. Retrieved October 24, 2011. 
  12. ^ Dronenburg v. Zech, 746 F.2d 1579, 1582 (D.C. Cir. 1984).
  13. ^ New York Times 1987 October 23
  14. ^ "ACLU Opposes Nomination of Judge Alito". American Civil Liberties Union. Archived from the original on 2007-04-06. Retrieved 2007-08-17. 
  15. ^ Manuel Miranda (2005-08-24). "The Original Borking". Wall Street Journal. Retrieved 2007-08-10. 
  16. ^ "34. The Bork Nomination". Retrieved 2010-06-20. 
  17. ^ Broder, John M. (August 27, 2009). "Edward M. Kennedy, Senate Stalwart, Is Dead at 77". The New York Times. Retrieved April 10, 2010. 
  18. ^ a b A hell of a senator, Lexington, The Economist, August 29, 2009.
  19. ^ "Robert H. Bork". Harper Collins. Retrieved 2008-10-26. 
  20. ^ Damon W. Root (2008-09-09). "Straight Talk Slowdown". Reason. Retrieved 2008-10-26. 
  21. ^ Gail Russell Chaddock (2005-07-07). "Court nominees will trigger rapid response". Christian Science Monitor. Retrieved 2007-08-10. 
  22. ^ "The Bork Tapes Saga". The American Porch. Retrieved 2007-08-17. 
  23. ^ Safire, William (May 27, 2001). "On Language: The End of Minority". New York Times Magazine: p. 12. Document ID 383739671, ProQuest Historical Newspapers The New York Times (1851–2004) database. "judge fights 'borking' needed to stop court packing?" 
  24. ^ John Fund (January 8, 2001). "The Borking Begins". The Wall Street Journal. Retrieved August 17, 2007. 
  25. ^ "Bork, v". Oxford English Dictionary Online. March 2002. Retrieved December 3, 2009. 
  26. ^ "Thomas More for Our Season". Leadership U. Retrieved 2007-08-17. 
  27. ^ "Slouching Towards Gomorrah: Modern Liberalism and American Decline". The Mises Review. Retrieved 2008-01-01. 
  28. ^ Life Magazine, Vol 14, No. 13.
  29. ^ "Judge Bork Converts to the Catholic Faith". National Catholic Register. Retrieved 2007-08-17. 
  30. ^ "Bush says Miers has experience, leadership". The Mercury News. Archived from the original on 2005-10-28. Retrieved 2007-08-17. 
  31. ^ Robert H. Bork, "Slouching Towards Miers", Wall Street Journal, October 19, 2005, p. A12.
  32. ^ "Robert Bork Cites 'Wanton' Negligence in Suing Yale Club for $1-Million". The Chronicle of Higher Education. Retrieved 2007-08-17. 
  33. ^ "Robert H. Bork v. The Yale Club of New York City" (PDF). United States Court Southern District of New York. Retrieved 2007-08-17. 
  34. ^ Zambito, Thomas (2008-05-09). ""Supreme nominee Bork settles Yale suit", ''New York Daily News'', May 10, 2008". Retrieved 2010-06-20. 
  35. ^ "United States of America v. Lewis Libby" (PDF). United States District Court for the District of Columbia. Retrieved 2007-08-17. 
  36. ^ Has the judge in 'The Simpsons' ever been named?

External links

Legal offices
Preceded by
Erwin Griswold
United States Solicitor General
Succeeded by
Wade McCree
Preceded by
Elliot Richardson
United States Attorney General

Succeeded by
William Saxbe
Preceded by
Carl McGowan
Judge of the Court of Appeals for the District of Columbia Circuit
Succeeded by
Clarence Thomas

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  • Robert Bork — Saltar a navegación, búsqueda Robert Bork Robert Heron Bork (n. 1 de marzo de 1927 en Pittsburgh, Pennsylvania) es un jurista estadounidense activista en favor de la filosofía jurídica del originalismo. Bork fue Procurador General, actuando como …   Wikipedia Español

  • Robert Bork — Robert Heron Bork (* 1. Mai 1927 in Pittsburgh, Pennsylvania) ist ein US amerikanischer Jurist und ehemaliger United States Solicitor General. Biografie Der Sohn eines Handelsvertreters aus der Stahlindus …   Deutsch Wikipedia

  • Robert Bork — Robert Heron Bork (né le 1er mars 1927 à Pittsburgh) est un juriste américain qui soutient l originalisme, une des théories de l interprétation juridique. Il a été avocat général des États Unis, temporairement procureur général des États Unis, et …   Wikipédia en Français

  • Robert Bork Supreme Court nomination — Robert Heron Bork (born birth date and age|1927|3|1) 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… …   Wikipedia

  • Bork — may refer to: *Robert Bork, an American legal scholar and former Supreme Court nominee * *Bork (comics), a fictional superhero in the DC Comics universe *Ellen Bork, daughter of Robert Bork and deputy director of Project for the New American… …   Wikipedia

  • Bork — ist der Familienname folgender Personen: Arthur Bork (* 1892), SS Führer Eduard Bork (1833–1893), deutscher Jurist und Mitglied des Preußischen Abgeordnetenhauses Gerhard Bork (1917–2004), deutscher Kirchenmusiker Hugo Bork (1907–1998), deutscher …   Deutsch Wikipedia

  • Bork — verb a) To defeat a judicial nomination through a concerted attack on the nominees character, background and philosophy. After an eight year hiatus, these groups are back on the scene, ready to implement an apparent vicious strategy of Borking… …   Wiktionary

  • Robert — Infobox Given Name Revised name = Robert imagesize= caption= pronunciation = IPA|rɑbɚrt, IPA|rɒbɚt, IPA|rɒbɚrt gender = Male meaning = Bright Fame region = Germanic origin = related names = Rob, Dick, Dickey, Robbie, Robin, Rupert and Bert… …   Wikipedia

  • bork — To attack shamelessly, with no regard for the truth, and with total disregard for doing the right thing. Word came into existence after the Democrat controlled United States Senate voted not to confirm Robert Bork s nomination (by President… …   Dictionary of american slang

  • bork — To attack shamelessly, with no regard for the truth, and with total disregard for doing the right thing. Word came into existence after the Democrat controlled United States Senate voted not to confirm Robert Bork s nomination (by President… …   Dictionary of american slang

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