By Godfrey Hodgson, The Guardian
Controversial lawyer and legal scholar who was a pugnacious standard bearer for the American right
Robert Bork, who has died aged 85, was one of the most controversial American legal scholars of his generation. After two of President Richard Nixon’s attorney generals had refused to obey a presidential order to dismissArchibald Cox, the special prosecutor appointed to investigate Nixon’s conduct in the Watergate affair, in the so-called “Saturday Night Massacre”, Bork – third in seniority in the justice department as solicitor general – carried out the deed.
Even more contentious was the acrimonious hearing before the judiciary committee of the Senate in 1987 after President Ronald Reagan nominated Bork for a vacant seat on the supreme court. Liberal groups, led by Senator Edward Kennedy, attacked Bork so fiercely that a new noun, “borking”, was coined to described fierce attempts to destroy the reputation of a man nominated for public office.
As a scholar, Bork, who taught law at Yale, was an “originalist”. He believed, that is, that activist liberal judges had departed both from their proper role and from the constitution. Instead they should determine the original intention of the 18th-century framers of the constitution. Bork wrote books with titles such as Slouching to Gomorrah, in which he denounced what he saw as liberal departures from the path of constitutional righteousness.
As an ideological activist, Bork was a key figure in the creation of the intellectual armature of the “conservative ascendancy”. He was one of the founders of the Federalist Society, a membership organisation that recruited young conservative lawyers so that there should always be a supply of conservatives to interpret the law from the bench. He was associated with many of the conservative organisations seeking to overthrow liberal influences in the law schools, the government and the courts. He was associated with the American Enterprise Institute, the conservative thinktank, and was funded by the rightwing John M Olin foundation.
A man of great erudition and with a sardonic sense of humour, Bork had a notably pugnacious style. He was deeply embittered by his treatment by the media over the “Saturday Night Massacre” and even more by the experience of being denied a supreme court seat, as he saw it, unjustly. Witty and congenial within the conservative confraternity, he was surly and suspicious with the media and hostile if he sniffed the presence of liberals.
Although he had long denounced the compensation culture in American tort law, he sued the Yale club for $1m when he tripped and fell on his way to the platform to give a speech. When George W Bush nominated his own lawyer, Harriet Miers, to the supreme court, Bork called it a “disaster” and “a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years”. In effect, he borked her.
Bork was born in Pittsburgh. His father was a steel purchasing agent, prosperous enough to send him to the expensive boarding school Hotchkiss, in Connecticut. He served in the US marines in China in 1945 and graduated from the University of Chicago in two years. He never forgave the Columbia School of Journalism for refusing to admit him until he had undergone the full four-year undergraduate course.
In revenge, as he once put it, he became a lawyer. He studied at the law school of the University of Chicago, where he came into contact with conservative teachers such as Edward Levi and with Milton Friedman‘s brother-in-law, Aaron Director.
He practised law for eight years with a big Chicago law firm, Kirkland & Ellis, then taught law at Yale, where both Bill and Hillary Clinton were among his students, or rather, as he put it, were in the room when he was teaching. As early as the 1964 election he found himself almost alone among 2,000 Yale professors in backing the Republican Barry Goldwater against Lyndon Johnson for president.
Bork’s first speciality was anti-trust law. He argued that trusts might often be advantageous for consumers. Later he turned his attention to constitutional law. He was much influenced by Alexander Bickel, who believed liberal judges had gone too far in using the law to impose political beliefs.
Bork was invited to advise the White House after Nixon’s vice-president, Spiro Agnew, was caught taking bribes. He impressed Nixon, who appointed him solicitor general, and Bork served Nixon loyally by firing Cox. He believed Nixon had the right to dismiss Cox, but initially thought he ought to resign to avoid being seen as Nixon’s henchman. However, he was persuaded to stay on as acting attorney general until William Saxbe was appointed, and as solicitor general until 1977.
He returned to teach at Yale, but in 1982 he was appointed to the US court of appeals. When in 1987 he was nominated to the supreme court, liberals were outraged. “Robert Bork’s America,” Ted Kennedy said, “is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, [and] schoolchildren could not be taught about evolution … No justice would be better than this injustice.”
Civil rights, civil liberties and abortion rights organisations all denounced Bork and although he complained that their criticisms were “scurrilous”, Reagan withdrew the nomination.
Bork’s first wife, Claire Davidson, whom he married in 1952, died of cancer in 1980. In 1982 he married Mary Ellen Pohl, a former nun, and in 2003 Bork converted to Catholicism. His daughter, Ellen, is the deputy director of the neo-conservative Project for a New American Century. He is also survived by a son, Robert H Bork Jr.
• Robert Heron Bork, lawyer and polemicist, born 1 March 1927; died 19 December 2012
[Robert Bork from PBS’ broadcast on his confirmation hearings via YouTube]