Robert Bork, the conservative judge and scholar whose 1987 nomination by President Ronald Reagan to the Supreme Court sparked an epic battle which has defined Senate judicial politics ever since, has died at age 85.
The Senate voted to reject Bork’s nomination by a vote of 58 to 42, with two Democrats voting for Bork and six Republicans opposing him.
Bork’s wife and some of his friends thought Reagan had not fought hard enough to win the nomination battle but Bork also damaged himself by coming across in his testimony before the Senate Judiciary Committee as detached and professorial.
His defeat – the last time the Senate has rejected a Supreme Court nominee -- was an outcome that weakened Reagan, left conservatives bitter, and resulted ultimately in the nomination and confirmation of Judge Anthony Kennedy, whose sometimes liberal views have chagrined many Republicans.
Kennedy is still serving and is the high court’s swing vote.
In a statement Wednesday, Sen. Mike Lee, R- Utah, a former law clerk to Supreme Court Justice Samuel Alito, said, "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."
Within 45 minutes of Reagan’s announcement of Bork as his nominee to fill the vacancy created by the retirement of swing justice Lewis Powell, Sen. Ted Kennedy, D- Mass., went to the Senate floor to deliver a scathing assault on him. “Robert Bork’s America is a land in which women would be forced into back alley abortions, blacks would sit at segregated lunch counters, school children could not be taught about evolution, writers and artist could be censured at the whim of government,” Kennedy said.
On abortion Bork had said that the 1973 Roe v. Wade decision which legalized abortion nationwide was “an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority.”
Bork also provoked opposition due to an article he’d written in 1963 criticizing what eventually became parts of the 1964 civil rights law that required racial integration of hotels, restaurants, and other businesses. While Bork did refer to what he called “the ugliness of racial discrimination,” he also wrote that a law requiring businesses to serve black people would too greatly infringe on the freedom of the individuals who owned the businesses.
Some Democrats also opposed Bork because as the third-ranking official in the Justice Department in 1973 he had fired Archibald Cox, the special prosecutor in the Watergate scandal, after the top two officials in the department, Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus, resigned rather than carrying out President Richard Nixon’s order to dismiss Cox.
Playing a leading role is defeating Bork was the then-chairman of the Senate Judiciary Committee, Sen. Joe Biden of Delaware, an episode Biden recalled in his debate with GOP vice presidential nominee Sarah Palin in 2008: “I led the fight against Judge Bork. Had he been on the court, I suspect there would be a lot of changes that I don't like and the American people wouldn't like, including everything from (overturning) Roe v. Wade to issues relating to civil rights and civil liberties.”
After his nomination was defeated, Bork resigned from his post as a federal appeals court judge and began writing books which criticized American culture and the legal profession, such as his 2003 book “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” and his 2005 book “A Country I Do Not Recognize: The Legal Assault on American Values.”