Rightwing judicial icon Bork dies at 85

The Washington Post, AP

Robert Bork, the conservative jurist who fired Watergate special prosecutor Archibald Cox during the “Saturday Night Massacre” in 1973 and whose failed nomination to the Supreme Court in 1987 sparked an enduring political schism over judicial nominations, died early Wednesday at Virginia Hospital Center in Arlington of complications from heart disease. He was 85.

For decades, Bork was a major architect of the conservative rebuttal to what he considered liberal judicial activism. He criticized civil rights legislation and rulings in cases involving the “one man, one vote” principle and the constitutional right to privacy.

Conservative legal scholars lauded Bork as an intellectual leader of the move toward originalism, which calls for the U.S. Constitution to be strictly interpreted as it was envisioned by the Founding Fathers. His unrelenting calls for judicial restraint and his opposition to “imperialistic” liberal judges, who he said read their values into the constitution, made him an iconic figure in conservative legal circles.

In his writings and in debates on legal doctrine, the burly, bearded, chain-smoking ex-marine was sharply confrontational. But friends and enemies alike found him a man of great charm, compassion, intellect and wit.

A 1987 Time magazine article reported that Bork had a disarming presence, even with his political opponents. When one Justice Department official said that a decision would be made “over my dead body,” Bork is said to have quipped, “To some of us, that sounded like the scenic route.”

After the retirement of Justice Lewis Powell Jr. in 1987, liberals feared that Reagan might appoint a judge who would tilt the court toward the right. Judge Bork’s nomination went to a Senate controlled by Democrats, with Sen. Joe Biden as chairman of the Judiciary Committee.

The White House tried to position Bork as a mainstream conservative, and conservative columnist George Will declared him “the most intellectually distinguished nominee since Felix Frankfurter” in 1939.

But liberals vowed to defeat Bork and waged an all-out campaign, which included television commercials featuring actor Gregory Peck, to portray him as an unreconstructed extremist. Among those who testified against Bork was one of his former students at Yale Law School, Arkansas Gov. Bill Clinton, five years before he was elected president.

In five days of extensive hearings before the committee, Bork’s detractors pointed to his earlier writings, in which he criticized Roe v. Wade — the high court’s assertion of a constitutional right to privacy that extended to a woman’s decision to have an abortion — affirmative action and aspects of several civil rights laws.

“Robert Bork’s America,” Sen. Edward Kennedy declared on the Senate floor, “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 for whom the judiciary is — and is often the only — protector of the individual rights that are the heart of our democracy.”

Bork’s supporters railed that questions over his fitness for the high court crossed the line and became personal attacks — to a degree considered unprecedented in a judicial nomination.

The nomination was defeated 58-42. For Bork and his supporters, it was a bitter defeat — and one that would not be forgotten.

The bare-knuckle tactics used by Democrats during Bork’s nomination — probing the political views and legal philosophy of a judicial nominee — were adopted by both parties in a practice that became known as “borking,” meaning the vilification of a nominee on ideological grounds. Since the 1980s, judicial nominees have come under much greater scrutiny and have seldom sailed through the Senate without dissent, as they often had in the days before Bork.