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Robert Bork, 85; nomination to US Supreme Court prompted bitter battle

Senator Joe Biden of Delaware spoke with Robert Bork during the confirmation hearings in 1987.

Jose R. Lopez/New York Times

Senator Joe Biden of Delaware spoke with Robert Bork during the confirmation hearings in 1987.

Robert H. Bork, the conservative jurist whose 1987 Supreme Court nomination the Senate rejected by a record margin after one of the bitterest confirmation battles in US history, died Wednesday in Arlington, Va. He was 85.

His son Robert Jr. told The New York Times that the cause was complications from heart disease.

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The fight over Mr. Bork’s confirmation took on a significance that extended well beyond politics and law. It became a flashpoint in the culture wars between post-’60s liberalism and a resurgent conservatism. To the right, the rejection of Mr. Bork symbolized the triumph of political correctness. To the left, his nomination represented an attempt to impose a reactionary political agenda on the courts. Liberal groups mounted extensive advertising campaigns attacking Mr. Bork.

Indeed, the verb “to bork,” entered the political lexicon. “Safire’s Political Dictionary” defines it as “attack viciously a candidate or appointee, especially by misrepresentation in the media.” The ferocity surrounding Mr. Bork’s confirmation process prefigured that inspired by Clarence Thomas’s nomination four years later.

None questioned Mr. Bork’s credentials to sit on the nation’s highest court. At the time of his nomination, he had spent five years as a judge on the US Court of Appeals for the District of Columbia Circuit. He had served as solicitor general, the third-highest position in the Justice Department, and acting attorney general during the Nixon administration. (Mr. Bork played a crucial role in the “Saturday Night Massacre,” when President Richard Nixon’s dismissal of Watergate special prosecutor Archibald Cox led to the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus and inspired a firestorm of protest in October 1973. Mr. Bork’s refusal to resign along with his superiors was held against him in some quarters during his confirmation battle.)

As a professor at Yale Law School, Mr. Bork was known as a leading authority on antitrust law and, more generally, for intellectual firepower. Most recently, he served as one of the conservative scholars advising former Massachusetts governor Mitt Romney during his failed run for the presidency.

Mr. Bork earned a reputation as perhaps the foremost proponent of interpreting the Constitution in terms of the original intent of the Founders. As such, he was a fierce critic of what he saw as the judicial activism the Supreme Court practiced under Chief Justice Earl Warren during the ’50s and ’60s, an activism it only somewhat tempered under Chief Justice Warren Burger in subsequent years.

In announcing Mr. Bork’s nomination, President Ronald Reagan noted he was “widely recognized as the most prominent and intellectually powerful advocate of judicial restraint.”

For Mr. Bork’s opponents, that was precisely the problem. They did not question his credentials. They questioned his views — or rather their extremeness.

Although Mr. Bork hailed Brown v. Board of Education, the landmark 1954 ruling that declared segregation unconstitutional, as “a great and correct decision,” he called it “a very weak legal opinion.” In a 1963 article, he had called civil rights demonstrators “a mob” who coerced “other private individuals in the exercise of their freedom.” He later expressed regret over such language and said his views had changed. Yet as a result of such past racial insensitivity, civil rights organizations strenuously opposed his nomination.

Feminist groups also opposed Mr. Bork’s nomination. He had previously denounced the Supreme Court’s upholding a woman’s constitutional right to an abortion as “judicial imperialism,” and in 1968 he had called the Supreme Court’s citing a constitutional right to privacy in its landmark 1965 ruling Griswold v. Connecticut “one more slogan” employed by judges “writing their own tastes into law.”

A few hours after Reagan announced Mr. Bork’s nomination, US Senator Edward M. Kennedy, a Massachusetts Democrat, denounced it in a speech on the Senate floor. “Robert Bork’s America is a land in which women would be forced into back-alley abortions,” Kennedy said, “blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids.”

Kennedy’s speech, Mr. Bork later wrote, “set the themes and the tone” for the confirmation battle that followed.

Mr. Bork was no stealth candidate. He had given 84 speeches in the year prior to his nomination, delivered more than 150 appeals court decisions during his time on the bench, and as a law professor written nearly 80 articles. “If I hadn’t written anything,” Mr. Bork said in a 1990 Chicago Tribune interview, “they wouldn’t have had anything to distort.”

An extensive paper trail was far from the only factor in Mr. Bork’s defeat. Having recently regained control of the Senate, Democrats were determined to flex their muscles, and the Iran-contra scandal had sapped Reagan’s political power.

The chairman of the Senate Judiciary Committee, Joe Biden, a Delaware Democrat, was running for the Democratic presidential nomination, further raising the political ante. Biden’s subsequent withdrawal from the race made him all the more eager to appear in command.

The fact that the justice Mr. Bork was supposed to replace, Lewis F. Powell Jr., had been the swing vote between the court’s liberal and conservative wings made the nomination seem especially momentous. The year before, there had been little debate when Justice William H. Rehnquist had been named to succeed Burger as chief justice, and Antonin Scalia to succeed Rehnquist. If Mr. Bork was more conservative than Rehnquist or Scalia, it was a matter of degree, not kind. Yet their nominations had not threatened the balance of power on the court. Some observers even said Mr. Bork’s scruffy beard and the odd sound of his surname made him offputting, as did his sometimes-prickly manner.

After the Judiciary Committee voted against Mr. Bork 9 to 5, he refused a White House offer to withdraw his nomination. The final Senate vote was 58 to 42. US Appeals Court Judge Douglas Ginsburg was then nominated for the Powell seat, only to have the nomination withdrawn after it was learned he had smoked marijuana. The White House then proposed US Appeals Court Judge Anthony M. Kennedy, who was unanimously confirmed by the Senate.

Robert Heron Bork was born on March 1, 1927, in Pittsburgh, the son of Harry P. Bork and Elizabeth (Kunkle) Bork.

“I was a student radical in high school and in college,” Mr. Bork said in a 1997 interview with Insight magazine. “I went to law school in order to become a labor-union lawyer and bring down the system.”

Mr. Bork credited the rigorous intellectual atmosphere of the University of Chicago, where he earned his undergraduate and law degrees, and reading F.A. Hayek’s “The Road to Serfdom” and Whittaker Chambers’s “Witness” for having “destroyed my daydreams about socialism,” as he once put it.

Mr. Bork served in the Marine Corps from 1945 to 1946; and as a reserve was recalled to active duty from 1950 to 1952. After several years in private practice in Chicago, he joined the faculty at Yale Law School in 1962. Named solicitor general in 1973, Mr. Bork was almost immediately embroiled in controversy. He drafted the Justice Department’s brief against Vice President Spiro T. Agnew, accused of taking bribes while an elected official in Maryland. Richardson credited that brief with forcing Agnew to accept a plea bargain and not contest the charges against him.

Mr. Bork drew much more public attention with the Saturday Night Massacre. He later said he considered joining Richardson and Ruckelshaus in resigning. “I did not want to be perceived as a man who did the president’s bidding to save my job,” he said in a 1987 New York Times interview. But Richardson urged him to stay on to ensure departmental stability. In a 1987 Times interview, Richardson praised Mr. Bork “for standing up to Nixon” after the massacre “and telling him to appoint another special prosecutor.”

Mr. Bork returned to Yale in 1977. A year later, he published “The Antitrust Paradox,” which both anticipated and influenced the deregulation movement of the late 1970s and early ’80s.

After Mr. Bork’s wife, Claire (Davidson) Bork, died in 1980, he left academe and resumed practicing law. He became a judge in 1982. He stepped down from the bench a few months after the defeat of his Supreme Court nomination.

“I liked judging very much,” Mr. Bork wrote in his 1990 best seller, “The Tempting of America: The Political Seduction of the Law.” “But I wanted engagement with larger ideas than the run of cases then brought before us.”

He became John M. Olin scholar in legal studies at the American Enterprise Institute. Mr. Bork’s “Slouching Towards Gomorrah: Modern Liberalism and American Decline” (1996) was also a bestseller. He published “Coercing Virtue: The Worldwide Rule of Judges” in 2003.

Mr. Bork married Mary Ellen Pohl in 1982.

In addition to his wife and his son Robert Jr., both of McLean, Va., Mr. Bork leaves another son, Charles of Seattle; a daughter, Ellen of Washington, D.C.; and two grandchildren.

Mark Feeney can be reached atmfeeney@globe.com.
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