High-court nominee Bork dies

Bid failed in bitter Senate fight:‘My name became verb,’ he said

Thursday, December 20, 2012

— Robert Bork, the U.S. judge and legal scholar whose nomination to the Supreme Court by President Ronald Reagan set off a battle for the judiciary that lived on long after the U.S. Senate rejected him, has died. He was 85.

He died Wednesday morning at Virginia Medical Center in Arlington, said his son, Robert Jr. The cause was heart disease.

Bork’s defeat in the Senate by a roll call vote of 58 to 42 - the most votes ever against a Supreme Court nominee - established new rules for how prospective justices get selected and vetted. The word “borking” entered the political lexicon, meaning, according to the Oxford English Dictionary, trying to block candidates for public office “by systematically defaming or vilifying them.”

“My name became a verb,” Bork told CNN in 2005, “andI regard that as one form of immortality.”

In nationally televised hearings, the Senate Judiciary Committee delved into Bork’s ideology, not just his legal qualifications or competence. His past commentary on hotbutton issues became fodder for his interrogators.

Battle lines formed swiftly after Reagan, on July 1, 1987, announced his selection of Bork, a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to succeed Lewis Powell, who was retiring.

Within an hour of the announcement, Sen. Edward Kennedy, D-Mass., said in a speech:

“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 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.”

Before the confirmation hearings even began, Sen. Joe Biden of Delaware, the Judiciary Committee chairman who was then seeking the 1988 Democratic presidential nomination, declared that he would lead the fight against Bork.

In a 1963 article for New Republic magazine, Bork had criticized civil-rights legislation that barred restaurants, hotels and other public accommodations from discriminating on the basis of race. While the “ugliness” of racism was clear, he wrote, “having the state coerce you into more righteous paths” is “a principle of unsurpassed ugliness.”

On abortion, he had testified at a 1981 Senate hearing that Roe v. Wade was “anunconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority.” He also had criticized the 1965 Supreme Court decision establishing a constitutional right to privacy that, among other things, permitted married couples to purchase contraception.

At the hearings, Bork said he had “great respect for precedent” and insisted that he didn’t know how he would vote if a challenge to Roe v. Wade came before him. On Bork’s final day as a witness, Republican Arlen Specter of Pennsylvania challenged his contention that the Supreme Court must rely on the “ original intent” of the framers of the Constitution.

On Oct. 6, the Senate committee voted 9-5 against recommending confirmation. All eight Democrats, plus Specter, voted against Bork. Facing pressure to withdraw before the full Senate voted, Bork vowed to fight on.

The full Senate’s 58-42 defeat of Bork on Oct. 23 was mostly along party lines, with six Republicans opposing him and two Democrats supporting him.

Reagan’s second choice to succeed Powell, appellate court Judge Douglas Ginsburg, was forced to withdraw amid reports that he had on occasion used marijuana, not just while a student in 1960s but as an assistant professor at Harvard University in the 1970s. Reagan filled the seat with his third pick, Anthony Kennedy, who went on to be the court’s pivotal swing votefor two decades.

Four months after the Senate vote, Bork stepped down as an appellate judge. He worked at the American Enterprise Institute until 2003, then at the Hudson Institute. He was an adviser to Republican nominee Mitt Romney in the this year’s presidential election.

Robert Heron Bork was born March 1, 1927, in Pittsburgh, the only child of Harry Bork, a purchasing agent for a steel firm, and the former Elizabeth Kunkle, a teacher.

After two semesters at the University of Pittsburgh, he enlisted in the Marine Corps in 1945 and was in training when World War II ended.

He earned his undergraduate degree from the University of Chicago in 1948 and returned there for law school, graduating in 1953 after a second stint with the Marines.

He was named U.S. solicitor general by President Richard Nixon at the start of his second term in 1973. By the end of that year, Bork was embroiled in the growingscandal over the Nixon White House’s cover-up of the June 1972 break-in at Democratic National Committee headquarters at the Watergate office complex.

In what became known as the Saturday Night Massacre, Nixon on Oct. 20, 1973, ordered the dismissal of the independent Watergate prosecutor, Archibald Cox. The attorney general, Elliot Richardson, and his deputy, William Ruckelshaus, both resigned rather than fulfill the order. That left Bork as acting attorney general, and he carried out the firing of Cox while ensuring that a new special prosecutor, Leon Jaworski, was appointed to continue the investigation.

Bork’s first wife, the former Claire Davidson, died in 1980 of cancer. They had three children, Charles, Ellen and Robert Jr. In 1982, Bork married the former Mary Ellen Pohl.

Information for this article was contributed by Ethan Bronner and Charlie Savage of The New York Times.

Front Section, Pages 2 on 12/20/2012