Judge Robert H. Bork, one of the chief conservative intellectuals of the law, who forever changed the nature of Supreme Court confirmation hearings, died Wednesday morning of heart disease, according to his son, Robert H. Bork Jr. Bork was 85 years old.
“Robert Bork was one of the most influential legal scholars of the past 50 years. 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,” Supreme Court Justice Antonin Scalia in a statement.
President Reagan nominated Bork, who was at the time a federal judge, to the Supreme Court in 1987 to fill the seat of the more moderate Lewis F. Powell Jr. Bork’s confirmation hearing ignited a fiery constitutional debate as Bork outlined his conservative views. His nomination failed in the Senate.
During the hearings, Bork described his legal philosophy, particularly in regard to the theory of “originalism,” or the importance of using the framers and the founders of the Constitution to understand the meaning its language.
“How should a judge go about finding the law?” he asked senators in his opening statement. “The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended. The intentions of the lawmakers govern whether the lawmakers are the Congress of the United States enacting a statute or whether they are those who ratified our Constitution and its various amendments.”
But his critics, particularly among those who favored abortion rights, seized on Bork’s attack on one case — Griswold v. Connecticut — that provided the foundation for Roe v. Wade.
His nomination ultimately failed by a vote of 42 to 59. His seat was eventually filled by Justice Anthony M. Kennedy.
“You asked him a question, he answered it,” said Commentary editor John Podhoretz in a post on Wednesday. “You asked him about views of cases like Griswold v. Connecticut, involving the privacy of sexual acts in the bedroom, and he said the case had been wrongly decided not because there should be no privacy, but because he could locate no right to privacy in the Constitution. This was, he said, a matter for legislatures, not courts.”
From the start, Bork’s nomination faced fierce opposition. Liberal Sen. Edward Kennedy, D-Mass., said at the time, “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.”
Bork refused to withdraw his name from consideration. In a statement, he urged the Senate to go forward even though he knew his nomination would not survive. “The most serious and lasting injury in all of this is not to me, nor is it to all of those who have steadfastly supported my nomination and to whom I am deeply grateful,” he said. “Rather the damage is to the dignity and integrity of law and of public service in this country. I therefore wish to end this speculation — there should be a full debate and a final Senate decision.”
“His confirmation hearing proved a watershed in many ways,” said David Yalof, a professor of political science at the University of Connecticut. “Since Bork, nominees have learned the importance of framing their own past writings and their own past speeches in a manner that is less threatening, more innocuous and less likely to generate enthusiasm or anger.”
Yalof said the role of public interest groups had changed as well. “We’ve seen numerous interest groups who prepare actively, not only after a Supreme Court nomination has been announced but beforehand, reviewing lists of candidates expressing themselves both to the White House and the Senate judiciary.”
Long before she took the bench in 1995, Justice Elena Kagan ,who was then an assistant professor of law at the University of Chicago, said in a book review that the last truly substantive hearing had been that of Bork. “The Bork hearings presented to the public a serious discussion of the meaning of the Constitution, the role of the court, and the views of the nominee; that discussion at once educated the public and allowed it to determine whether the nominee would move the court in the proper direction.” Kagan wrote. “Subsequent hearings have presented to the public a vapid and hollow charade in which repetition of platitudes has replaced discussion of viewpoints, and personal anecdotes have supplanted legal analysis.”
At her own confirmation hearing in 2010, Kagan said that while she thought much of what she had written was correct, she had gotten some of the balance off. “I said, then, even then in that 1995 article, that it was inappropriate for a nominee to ever give any indication of how she would rule in a case that would come before the court … and I think it would be inappropriate to do so in a somewhat veiled manner, by essentially grading past cases.”
On Wednesday, the conservative judicial group the Federalist Society called Bork a “legal giant.” In a statement, the group said, “Our nation owes Judge Bork an enormous debt of gratitude for his irrepressible and forceful defense of the Constitution as it was written and understood by our founding fathers, pioneering a jurisprudence of original meaning that has had enormous influence in the legal academy as well as in the courts.”