Bork’s nomination was fiercely opposed by Democrats. Robert Bork dies at 85

Robert Bork, whose failed nomination to the Supreme Court sparked one of the most contentious appointment battles in American history and helped inspire the conservative legal movement, died Wednesday. He was 85.

Bork’s son, Robert H. Bork, Jr., told the AP his father died at the Virginia Hospital Center in Arlington of complications from heart ailments.


Bork had served as acting Attorney General and as Solicitor General under Presidents Richard Nixon and Gerald Ford. In 1982, President Ronald Reagan appointed him to D.C. Circuit Court of Appeals. But Bork only became a household name in 1987, when Reagan tried to promote him to the Supreme Court.

Bork’s nomination was fiercely opposed by Democrats, who saw him as a reactionary who would threaten racial progress and eliminate the line between church and state. Defenders pointed out not a single one of Bork’s earlier rulings had been overturned by the court.

Sen. Ted Kennedy (D-Mass.) delivered a famous speech on the floor of the Senate, where he portrayed “ Robert Bork’s America” as place where there “was no room at the inn for Blacks, and no place in the Constitution for women.” In October 1987, the Senate rejected Bork’s nomination, with 58 Senators voting against. Bork would resign from his judgeship the next year. Justice Anthony Kennedy — today considered the key swing vote on the court — eventual filled the vacancy.

“We would have had a jurisprudence over the past 25 years that would have been much closer to the founders’ intent,” had Bork reached the high court, Edwin Meese III, who was Attorney General under Ronald Reagan, told POLITICO. “This is not to disparage anybody, but the force of his intellect and his scholarship would have had a tremendous impact on the court.”

For example, Meese predicted Obamacare almost certainly would have been overturned in July if Bork was on the bench.

Meese said he counted Bork as a mentor, and that the judge “was one of the country’s greatest legal minds and a great champion of the Constitution.”

The fierce nature of the fight over Bork’s nomination gave rise to the term “Borking,” meaning to vilify a person to prevent his rise to public office, and has become an increasingly common occurrence in Washington since his nomination.

“My name became a verb,” Bork told CNN years after the nomination, “and I regard that as one form of immortality.”

Bork became even more influential in conservative circles after his nomination was defeated, serving as a rallying cry and icon. He worked at two conservative think tanks, the American Enterprise Institute and the Hudson Institute. In 2012, he served as an adviser to GOP nominee Mitt Romney’s presidential campaign on legal issues. (Vice President Joe Biden, who helped defeat Bork’s nomination, attacked Romney for associating with Bork.) In a 1996 book, “Slouching Toward Gomorrah: Modern Liberalism and American Decline,” he attacked moral relativism and blamed social liberals for the nation’s ills.

“Robert Bork was one of the most influential legal scholars of the past 50 years,” Supreme Court Justice Antonin Scalia said in a statement. “His impact on legal thinking in the fields of Antitrust and Constitutional Law was profound and lasting. More important for the final accounting, he was a good man and a loyal citizen. May he rest in peace.”

Two senators agreed with the Justice’s assessment.

“Robert Bork was one of America’s greatest jurists and a brilliant legal mind,” Utah Sen. Mike Lee said in a statement Wednesday. “He was an expert on issues ranging from antitrust to privacy laws and was deeply influential in promoting constitutional originalism. Despite the unfortunate and unnecessary controversy surrounding his Supreme Court nomination, Judge Bork remained an inspirational figure for those seeking to enforce constitutional limits on the federal government. Our thoughts and prayers are with the Bork family.”

“Bob was a true lion of the law who reinvigorated our belief that principles must be more important than politics, and reminded us that the rule of law is different than the rule of judges,” said fellow Utah Republican Sen. Orrin Hatch, a former chair of the Senate Judiciary Committee, in a statement. “He was a most brilliant attorney who shaped the way we think about the Constitution, the role of judges, and the meaning of liberty.”

Before coming to Washington, D.C. to work for Nixon, Bork had worked as a professor at Yale Law School, where he worked to advance the theory of originalism, which holds the only way to interpret the Constitution is through its meaning as the framers understood it. He was also an advocate of judicial restraint, the idea that judges should not move ahead of legislatures or the public.

“The [Supreme] Court’s performance strikes at the heart of the concept of a republic,” Bork said in a 2008 lecture at Heritage. “Without any warrant in law, nine lawyers split five to four, and the judgments of Congress, the President, state legislatures, governors, other federal judges, and the judges of all 50 states all are made instantly irrelevant. Whatever else it is, that is not democracy or a republican form of government. It is a robed oligarchy. So far, all attempts to tame it, to bring it back to democratic legitimacy, have failed.”

Eugene Meyer, the president of the Federalist Society, a conservative legal group, said Bork was a founding father of originalism.

“He was the one who really took the lead, along with Attorney General Meese, in bringing [originalism] into the discussion,” Meyer said, adding: “There were not a lot of people with the credentials he had saying these things. And there weren’t a lot of people who could say it as clearly.”

Meyer said Bork was also a key inspirational figure, as his clerks spread out around the country as law professors.

As a professor, he also taught future President Bill Clinton and future Secretary of State Hillary Clinton. After Nixon, he returned to Yale and wrote a widely-praised book on antitrust law, “The Antitrust Paradox.”

While working for Nixon in 1973, Bork played a key role in the “Saturday Night Massacre.” President Richard Nixon asked the Justice Department to fire Watergate special prosecutor Archibald Cox. Attorney General Elliot Richardson resigned rather than follow Nixon’s orders, and the number two official was fired after refusing to do so. Bork, the number three person at Justice, followed Nixon’s command.

Bork was born in Pittsburgh and attended the University of Chicago as an undergraduate and a law student. Bork served in the Marine Corps before entering private practice in 1954. Yale hired him in 1962.

Born a Presbyterian, Bork converted to Catholicism in 2003.

“There is an advantage in waiting until you’re 76 to be baptized, because you’re forgiven all of your prior sins,” Bork told the National Catholic Register at the time. “Plus, at that age you’re not likely to commit any really interesting or serious sins.”

Bork was married twice; first to Claire Davidson from 1952 to 1980, when she died of cancer. He has three children from his first marriage. He married Mary Ellen Pohl in 1982.

Bork’s demeanor could be steely, but Meyer said that hid a man who was warm and generous in private.

“This is a very kind and decent man,” Meyer said, “and that got hidden under his beard from time to time.”

Josh Gerstein contributed to this report.

CORRECTION: Corrected by: Hadas Gold @ 12/19/2012 10:06 AM CORRECTION: An earlier version of this article misstated Robert Bork's age.