Wednesday, December 19, 2012

Robert H. Bork, 1927-2012

The great conservative jurist has died.

I've cited Judge Bork many times in my writings on the gay marriage debate, and he's the model for judicial restraint when I discuss the Supreme Court and constitutional interpretation in class. William Jacobson laments that Bork will be remember for the wrong reasons, "Robert Bork, R.I.P."

And at the New York Times, "Robert H. Bork, Conservative Jurist, Dies at 85" (via Memeorandum):
Robert H. Bork, a former solicitor general, federal judge and conservative legal theorist whose 1987 nomination to the United States Supreme Court was rejected by the Senate in a historic political battle whose impact is still being felt, died on Wednesday in Arlington, Va. He was 85.

Judge Bork’s death, of complications of heart disease, was confirmed by his son, Robert H. Bork Jr.

Judge Bork, who was senior judicial adviser this year to the presidential campaign of Gov. Mitt Romney, played a small but crucial role in the Watergate crisis as the solicitor general under President Richard M. Nixon. He carried out orders to fire a special prosecutor in what became known as “the Saturday Night Massacre.” He also handed down notable decisions from the federal appeals court bench. But it was as a symbol of the nation’s culture wars that Judge Bork made his name.

It is rare for the Senate in its constitutional “advice and consent” role to turn down a president’s Supreme Court nominee, and rarer still for that rejection to be based not on qualifications but on judicial philosophy and temperament. That turned Judge Bork’s defeat into a watershed event and his name into a verb: getting “borked” is what happens to a nominee rejected for what supporters consider political motives.

The success of the anti-Bork campaign is widely seen to have shifted the tone and emphasis of Supreme Court nominations since then, giving them an often strong political cast and making it hard, many argue, for a nominee with firmly held views ever to get confirmed.

Till the end of his life, Judge Bork argued that American judges, acting to please a liberal elite, have hijacked the struggle over national values by overstepping their role, especially in many of the most important decisions on civil rights and liberties, personal autonomy and regulation of business.

He advocated a view of judging known as “strict constructionism,” or “originalism,” because it seeks to limit constitutional values to those explicitly enunciated by the Framers and to reject those that evolved in later generations. He dismissed the view that the courts had rightly come to the aid of those neglected by the majority. By contrast, he felt that majorities, through legislatures, should be empowered to make all decisions not specifically addressed in the Constitution.

He most famously took issue with the Supreme Court’s assertion in the 1960s and ’70s that the Constitution implicitly recognizes a right of privacy that bars states from outlawing abortion or the use of contraceptives by married couples.

That position along with his rejection of court-mandated help to minority groups led a coalition of liberal groups to push successfully for his Senate defeat, motivated in no small part by their sense that he cared more about abstract legal reasoning than the people affected by it. They contended that his confirmation would produce a radical shift on a closely divided Supreme Court and “turn back the clock” on civil and individual rights.

Judge Bork, who was 60 at the time, was sitting on the United States Court of Appeals for the District of Columbia Circuit, often a steppingstone to the Supreme Court, when President Ronald Reagan announced on July 1, 1987, that he was nominating him to the high court to replace Lewis Powell, a moderate justice who was retiring. Within an hour of the announcement, Senator Edward M. Kennedy, the Massachusetts Democrat, set the tone for the bruising contest to come when he 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, school children 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.”
Mary Jo Kopechne could not be reached for comment.

Added: At Althouse, "Robert Bork has died."