Robert Heron Bork (March 1, 1927 – December 19, 2012) was an
American judge, government official, and legal scholar who advocated
the judicial philosophy of originalism. Bork served as a Yale Law
School professor, the
United States Solicitor General, the Acting
United States Attorney General, and as a judge of the United States
Court of Appeals for the District of Columbia Circuit. In 1987,
Ronald Reagan nominated Bork to the Supreme Court, but the
United States Senate
United States Senate rejected his nomination.
Born in Pittsburgh, Pennsylvania, Bork pursued a legal career after
attending the University of Chicago. After working at the law firm of
Kirkland & Ellis, he served as a
Yale Law School
Yale Law School professor. He
became a prominent advocate of originalism, calling for judges to hew
to the framers' original understanding of the United States
Constitution. Bork also became an influential antitrust scholar,
arguing that consumers often benefited from corporate mergers and that
antitrust law should focus on consumer welfare rather than on ensuring
competition. Bork wrote several notable books, including The Antitrust
Paradox and Slouching Towards Gomorrah.
From 1973 to 1977, Bork served as the Solicitor General under
Richard Nixon and President Gerald Ford, arguing several
cases before the Supreme Court. In the October 1973 Saturday Night
Massacre, Bork became Acting Attorney General after his superiors in
Justice Department resigned rather than fire
Archibald Cox, who was investigating the Watergate scandal. Bork fired
Cox and served as Acting Attorney General until January 1974.
In 1982, President Reagan appointed Bork to the Court of Appeals for
the District of Columbia Circuit. After Supreme Court
Powell announced his impending retirement, Reagan nominated Bork to
the Supreme Court in 1987, precipitating a contested Senate debate.
Opposition to Bork centered on his stated desire to roll back the
civil rights decisions of the Warren and Burger courts and his role in
the Saturday Night Massacre. Bork's nomination was defeated in the
Senate, with 58 of the 100 Senators opposing his nomination. The
Supreme Court vacancy was instead filled by another Reagan nominee,
Anthony Kennedy. Bork resigned his judgeship in 1988 and served as a
professor at the
George Mason University School of Law
George Mason University School of Law and other
institutions. He also advised presidential candidate
Mitt Romney and
was a fellow at the
American Enterprise Institute
American Enterprise Institute and the Hudson
Institute before his death in 2012.
1 Early career and family
2 Advocacy of originalism
4 Solicitor General
4.1 "Saturday Night Massacre"
United States Circuit Judge
6 U.S. Supreme Court nomination
7 Bork as verb
8 Later work
9 Works and views
11 In popular culture
12 Selected writings
13 See also
15 External links
Early career and family
Bork was born in Pittsburgh, Pennsylvania. His father was Harry Philip
Bork Jr. (1897–1974), a steel company purchasing agent, and his
mother was Elisabeth (née Kunkle; 1898–2004), a schoolteacher.
His father was of German and Irish ancestry, while his mother was of
Pennsylvania Dutch (German) descent. 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, a Catholic religious sister turned activist.
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 Chicago 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 at Kirkland & Ellis in Chicago, and then was a professor
Yale Law School
Yale Law School from 1962 to 1975 and 1977 to 1981. Among his
students during this time were Bill Clinton, Hillary 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 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
Bork built on the influential critiques of the
Warren Court authored
by Alexander Bickel, who criticized the Supreme Court under Earl
Warren, alleging 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 influenced the opinions of judges such
Antonin Scalia and Chief
Rehnquist of the U.S. Supreme Court, and sparked a vigorous debate
within legal academia about how to interpret the Constitution.
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. 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."
At Yale, he was best known for writing The
Antitrust Paradox, a book
in which he argued that consumers often benefited from corporate
mergers, and that many then-current readings of the antitrust laws
were economically irrational and hurt consumers. He posited that the
primary focus of antitrust laws should be on consumer welfare rather
than ensuring competition, as fostering competition of companies
within an industry has a natural built-in tendency to allow, and even
help, many poorly run companies with methodologies and practices that
are both inefficient and expensive to continue in business simply for
the sake of competition, to the detriment of both consumers and
society. Bork's writings on antitrust law—with those of Richard
Posner and other law and economics and Chicago School thinkers—were
influential in causing a shift in the U.S. Supreme Court's approach to
antitrust laws since the 1970s.
Bork served as solicitor general in the U.S. Department of Justice
from March 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
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 successful careers including judges Danny Boggs
Frank H. Easterbrook
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" when U.S. President
Richard Nixon ordered
the firing of Watergate
Archibald Cox following
Cox's request for tapes of his Oval Office conversations. Nixon
U.S. Attorney General
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 resigned, making Bork Acting
Attorney General. When Nixon reiterated his order, Bork complied and
fired Cox. Bork remained Acting Attorney General until the appointment
William B. Saxbe
William B. Saxbe on January 4, 1974.
In his posthumously published memoirs, Bork stated that following the
firings, Nixon promised him the next seat on the Supreme Court. Nixon
was unable to carry out the promise after resigning in the wake of the
Watergate scandal, but eventually, in 1987,
Ronald Reagan nominated
Bork for the Supreme Court.
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 with
a unanimous consent voice vote 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
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."
In 1986, President Reagan considered nominating Bork to the Supreme
Court vacancy created by the promotion of Associate
Rehnquist to Chief Justice. Reagan ultimately chose Bork's D.C.
Circuit colleague, Judge Antonin Scalia, for the position.
U.S. Supreme Court nomination
Robert Bork 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, to replace retiring Associate
Powell. A hotly contested
United States Senate
United States Senate debate over Bork's
nomination ensued. Opposition was partly fueled by civil rights and
women's rights groups concerned with Bork's opposition to authority
claimed by the federal government to impose standards of voting
fairness upon 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, ever to 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.
Before Supreme Court
Justice Lewis Powell's expected retirement on
June 27, 1987, some Senate Democrats had asked liberal leaders to
"form a 'solid phalanx' of opposition" if President Ronald Reagan
nominated an "ideological extremist" 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, 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." 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 produced by
People For the American Way and
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 did not contain a general "right to
privacy" were viewed as a clear signal that, should he become a
Justice of 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.
On October 23, 1987, the Senate denied Bork's confirmation, with 42
Senators voting in favor and 58 voting against. Two Democratic
David Boren (D-OK) and
Ernest Hollings (D-SC), voted in his
favor, with 6 Republican Senators (
John Chafee (R-RI), Bob Packwood
Arlen Specter (R-PA),
Robert Stafford (R-VT), John Warner
Lowell P. Weicker Jr. (R-CT) voting against him.
The vacant court seat Bork was nominated to 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 in
The Atlanta Journal-Constitution
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
Clarence Thomas to the U.S. Supreme Court, saying, "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
In March 2002, the
Oxford English Dictionary
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."
There was an earlier usage of bork as a passive verb, common among
litigators in the D.C. Circuit: to "get borked" was to receive a
conservative judicial decision with no justification in the law,
reflecting their perception, later documented in the Cardozo Law
Review, of Bork's tendency to decide cases solely according to his
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
both a professor at
George Mason University School of Law
George Mason University School of Law and a senior
fellow at the
American Enterprise Institute
American Enterprise Institute for Public Policy
Research, a Washington, D.C., based think tank. Bork also consulted
Netscape in the
Microsoft litigation. Bork was a fellow at the
Hudson Institute. He later served as a visiting professor at the
University of Richmond School of Law
University of Richmond School of Law and was a professor at Ave Maria
Law in Ann Arbor, Michigan. In 2011, Bork worked as a
legal adviser for the presidential campaign of Republican Mitt
Works and views
Bork wrote 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 argued that the rise of the
New Left in the 1960s
in the U.S. undermined the moral standards necessary for civil
society, and spawned a generation of intellectuals who oppose Western
civilization. During the period these books were written, as well as
most of his adult life, Bork was an agnostic, a fact used pejoratively
behind the scenes by Southern Democrats when speaking to their
evangelical constituents during his Supreme Court nomination process.
The Tempting of America (page 82), Bork explained his support for
the Supreme Court's desegregation decision in Brown v. Board of
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
In 1999, Bork wrote an essay about
Thomas More and attacked jury
nullification as a "pernicious practice". Bork once quoted More in
summarizing his judicial philosophy.
In 2003, he published Coercing Virtue: The Worldwide Rule Of Judges,
American Enterprise Institute
American Enterprise Institute book that 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 problems he sees as inherent in the
federal judiciary of three nations, Israel, Canada, and the United
States—countries where he believes courts have exceeded their
discretionary powers, and have discarded precedent and common law, and
in their place substituted their own liberal judgment.
Bork also advocated modifying the Constitution to allow Congressional
super-majorities to override Supreme Court decisions, similar to the
Canadian notwithstanding clause. Though Bork had many liberal critics,
some of his arguments have earned criticism from conservatives as
well. Although an opponent of gun control, Bork denounced what he
called the "NRA view" of the Second Amendment, something he described
as the "belief that the constitution guarantees a right to
Teflon-coated bullets." Instead, he 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. (After his fall, he
successfully climbed to the dais and delivered his speech.)
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
Morrison v. Olson decision.
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.
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". He is
interred at Fairfax Memorial Park.
In popular culture
The look of the character Judge Roy Snyder on
The Simpsons is modeled
on Robert Bork.
In the "cold open" scene from a season 13 episode of Saturday Night
Live that parodied a scene from the film The Untouchables, President
Reagan (Phil Hartman) brutally beats
Robert Bork with a baseball bat.
Bork, Robert H. (1971). "Neutral Principles and Some First Amendment
Problems". Ind. L. J. 47: 1. This paper has been identified as
one of the most cited legal articles of all time.
Bork, Robert H. (1978). The
Antitrust Paradox. New York: Free Press.
Bork, Robert H. (1990). The Tempting of America. New York: Free Press.
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.
American Enterprise Institute
American Enterprise Institute Press.
Bork, Robert H. (Ed.) (2005). A Country I Do Not Recognize: The Legal
Assault On American Values. Stanford:
Hoover Institution Press.
Bork, Robert H. (2008) A Time to Speak: Selected Writings and
Arguments. Wilmington, Del.: ISI Books. ISBN 9781933859682
Bork, Robert H. (2013) Saving Justice: Watergate, the Saturday Night
Massacre, and Other Adventures of a Solicitor General. New York:
Encounter Books. ISBN 9781594036811
Ronald Reagan Supreme Court candidates
Unsuccessful nominations to the Supreme Court of the United States
University of Chicago
University of Chicago portal
District of Columbia portal
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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. His death, of complications of heart
disease, was confirmed by his son Robert H. Bork Jr.
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Robert Bork on Obama, the Supreme
Court, Nixon & Being Mitt Romney's Adviser". Newsweek.
^ Shapiro, Fred R.; Pearse, Michelle (2012). "The Most-Cited Law
Review Articles of All Time". Mich. L. Rev. 110: 1483–1520.
Bronner, Ethan (2007). Battle for Justice: How the Bork Nomination
Shook America. New York, New York, United States: Sterling.
Vile, John R. (2003). Great American Judges: An Encyclopedia. Santa
Barbara, California, United States: ABC-CLIO.
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Robert Bork's America
The Legacy of Robert H. Bork, Retro Report
Robert Heron Bork at the Biographical Directory of Federal Judges, a
public domain publication of the Federal Judicial Center.
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Appearances on C-SPAN
Booknotes interview with Bork on Slouching Toward Gomorrah, December
Congressional Record: Floor Vote on Bork Nomination
Think Tank Biography: Robert Bork
Bork, Robert H. (1996) Our Judicial Oligarchy . 1996 First Things
Robert Bork on IMDb
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