Robert Bork
Robert Heron Bork (March 1, 1927 – December 19, 2012)[1] was an American legal scholar who served as solicitor general of the United States from 1973 until 1977. A professor by training, he was acting United States Attorney General and a judge on the U.S. Court of Appeals for the D.C. Circuit from 1982 to 1988. In 1987, President Ronald Reagan nominated Bork to the U.S. Supreme Court, but the Senate rejected his nomination after a contentious and highly publicized confirmation hearing.
Robert Bork
December 19, 2012 (aged 85)
Arlington, Virginia, U.S.
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Claire Davidson(m. 1952; died 1980)
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Mary Ellen Pohl(m. 1982)
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Bork was born in Pittsburgh, Pennsylvania, and received both his undergraduate and legal education at the University of Chicago. After working at the law firms of Kirkland & Ellis and Willkie Farr & Gallagher, he served as a professor at Yale Law School. He became a prominent advocate of originalism, calling for judges to adhere to the original understanding of the United States Constitution, and an influential antitrust scholar, arguing that consumers often benefited from corporate mergers and that antitrust law should focus on consumer welfare rather than on ensuring competition. Bork wrote several notable books, including a scholarly work titled The Antitrust Paradox[2] and a work of cultural criticism titled Slouching Towards Gomorrah.
From 1973 to 1977, he served as Solicitor General under Presidents Richard Nixon and Gerald Ford, successfully arguing several cases before the Supreme Court. During the October 1973 Saturday Night Massacre, Bork became acting U.S. Attorney General after his superiors in the U.S. Justice Department chose to resign rather than fire Special Prosecutor Archibald Cox, who was investigating the Watergate scandal. Following an order from President Nixon, Bork fired Cox as his first assignment as Acting Attorney General. Bork served as Acting Attorney General until January 4, 1974, and was succeeded by Ohio U.S. Senator William B. Saxbe.[3]
In 1982, President Reagan appointed Bork to the Court of Appeals for the District of Columbia Circuit. In 1987, Reagan nominated Bork to replace retiring Supreme Court Justice Lewis Powell. His nomination attracted unprecedented media attention and efforts by interest groups to mobilize opposition to his confirmation,[4] primarily due to his outspoken criticism of the Warren and Burger Courts and his role in the Saturday Night Massacre. His nomination was ultimately rejected in the Senate, 42–58, and the vacancy was filled by Anthony Kennedy. Bork resigned from his judgeship in 1988, taking up a career as an author. He served as a professor at various institutions, including the George Mason University School of Law. He advised presidential candidate Mitt Romney, and was a fellow at the American Enterprise Institute and at the Hudson Institute.
Early life and education[edit]
Bork was born on March 1, 1927, in Pittsburgh, Pennsylvania.[5] He was the only child of Harry Philip Bork Jr. (1897–1974), a steel company purchasing agent, and Elizabeth (née Kunkle; 1898–2004), a schoolteacher.[6] His father was of German and Irish ancestry, while his mother was of Pennsylvania German descent.[7]
Bork attended the Hotchkiss School in Lakeville, Connecticut.[8] He later recalled that he spent his time there "reading books and arguing with people".[5] He then attended the University of Chicago, where he was a member of the international social fraternity Phi Gamma Delta and graduated with a Bachelor of Arts in 1948. He then attended the University of Chicago Law School, where he was an editor of the University of Chicago Law Review. He graduated in 1953 with a Juris Doctor and membership in the Order of the Coif and Phi Beta Kappa. While in law school, Bork took a two-year leave of absence to serve in the U.S. Marine Corps during the Korean War.
Academic career[edit]
After law school, Bork spent another year in military service, then entered private practice in 1954 as an associate at the law firm Kirkland & Ellis and Willkie Farr & Gallagher.[5][9] In 1962, Bork left private practice and joined the faculty of Yale Law School as a professor. He taught at Yale from 1962 to 1981, with a four-year break from 1973 to 1977 when he served as U.S. Solicitor General. Among Bork's students at Yale Law were Bill Clinton, Hillary Clinton, Anita Hill, Robert Reich, Jerry Brown, Linda Greenhouse, John Bolton, Samuel Issacharoff, and Cynthia Estlund.[10][11]
As a law professor, Bork was best known for his 1978 book The Antitrust Paradox, in which he argued that consumers often benefited from corporate mergers, and that many contemporary readings of the antitrust laws were economically irrational and hurt consumers. He posited that the primary focus of antitrust laws should be on consumer welfare (consumer welfare in Bork's book includes both producer welfare and consumer welfare) rather than ensuring competition, for fostering competition of companies within an industry has a natural built-in tendency to allow, and even help, many poorly run companies with methodologies and practices that are both inefficient and expensive to continue in business simply for the sake of competition, to the detriment of both consumers and society. Bork's writings on antitrust law, with those of Richard Posner and other law and economics and Chicago School thinkers, have been influential in causing a shift in the Supreme Court's approach to antitrust laws since the 1970s. Bork also supports using anticompetitive practices within the text as useful business practices. (e.g. exclusive deals, mergers, price fixing, etc.) [12][13][2]
United States Circuit Judge[edit]
Bork was a circuit judge for the United States Court of Appeals for the District of Columbia Circuit from 1982 to 1988. He was nominated by President Ronald Reagan on December 7, 1981, was confirmed via voice vote by the Senate on February 8, 1982,[19] and received his commission on February 9, 1982.
One of Bork's opinions while on the D.C. Circuit was Dronenburg v. Zech, 741 F.2d 1388,[20] decided in 1984. The case involved James L. Dronenburg, a sailor who had been administratively discharged from the United States Navy for engaging in homosexual conduct. Dronenburg argued that his discharge violated his right to privacy. His argument was rejected in an opinion written by Bork and joined by Antonin Scalia, in which Bork critiqued the line of Supreme Court cases upholding a right to privacy.[20]
In rejecting Dronenburg's suggestion for a rehearing en banc, the D.C. Circuit issued four separate opinions, including one by Bork (again joined by Scalia), who wrote that "no principle had been articulated [by the Supreme Court] that enabled us to determine whether appellant's case fell within or without that principle."[21]
In 1986, President Reagan considered nominating Bork to the Supreme Court after Chief Justice Warren Burger retired. Reagan ultimately nominated then-Associate Justice William Rehnquist to be the next Chief Justice and Bork's D.C. Circuit colleague, Antonin Scalia, for Rehnquist's Associate Justice seat. Some journalists and correspondents believed that if Reagan nominated Bork in 1986, Bork would have likely reached the Supreme Court, for the Senate at that time was led by the Republicans. However, the Senate Democrats might still have fought to defeat Bork in 1986, and the Republicans' Senate majority at the time was narrow (53–47), which implies that maybe Bork still would have been defeated in 1986, especially when the six Republicans[22] who voted against Bork's 1987 nomination were not first elected in the November 1986 Senate elections.[23]
Later work[edit]
Following his failure to be confirmed, Bork resigned his seat on the U.S. Court of Appeals for the D.C. Circuit, and was for several years both a professor at George Mason University School of Law and a senior fellow at the American Enterprise Institute for Public Policy Research. He consulted for Netscape in the Microsoft litigation.
Bork later served as a fellow at the Hudson Institute, a visiting professor at the University of Richmond School of Law and a professor at Ave Maria School of Law in Naples, Florida.[47] In 2011, he worked as a legal adviser for the presidential campaign of Republican Mitt Romney.[48]
Personal life[edit]
Bork was married to Claire Davidson from 1952 until her death from cancer in 1980. They had a daughter, Ellen, and two sons, Robert Bork Jr. and Charles Bork. In 1982, he married Mary Ellen Pohl,[78] a Catholic religious sister turned activist.[79] Bork Jr. is a prominent conservative activist who is currently president of the Antitrust Education Project.[80]
Bork died of complications from heart disease at the Virginia Hospital Center in Arlington, Virginia, on December 19, 2012.[81][42][82] Following his death, Scalia referred to Bork as "one of the most influential legal scholars of the past 50 years" and "a good man and a loyal citizen". He is interred at Fairfax Memorial Park.