Academia After law school, Bork spent another year in military service. From 1954 to 1962, he was in private practice at the law firms
Kirkland & Ellis and
Willkie Farr & Gallagher. 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.
Anti-Trust Law 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, including 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. until 1977. As Solicitor General, he argued several high-profile cases before the Supreme Court in the 1970s, including 1974's
Milliken v. Bradley, where his brief in support of the
State of Michigan was influential among the justices. Chief Justice
Warren Burger called Bork the most effective counsel to appear before the court during his tenure. Bork hired many young attorneys as assistants who went on to have successful careers, including judges
Danny Boggs and
Frank H. Easterbrook as well as
Robert Reich, later
Secretary of Labor in the Clinton administration.
Saturday Night Massacre in the
Oval Office in June 1975 On October 20, 1973, Solicitor General Bork was part of the "
Saturday Night Massacre" when President
Richard Nixon ordered the firing of
Watergate Special Prosecutor
Archibald Cox following Cox's request for tapes of his
Oval Office conversations. Nixon initially ordered
U.S. Attorney General Elliot Richardson to fire Cox. Richardson resigned rather than carry out the order. Richardson's top deputy,
Deputy Attorney General William Ruckelshaus, also considered the order "fundamentally wrong" and resigned, making Bork Acting Attorney General. When Nixon reiterated his order, Bork complied and fired Cox. Bork claimed he carried out the order under pressure from Nixon's attorneys and intended to resign immediately afterward, but was persuaded by Richardson and Ruckelshaus to stay on for the good of the Justice Department. In his posthumously published memoirs, Bork claimed that after he carried out the order, Nixon promised him the next seat on the Supreme Court, though Bork did not take the offer seriously as he believed Watergate had left Nixon too politically compromised to appoint another justice. Nixon never had the chance to carry out his promise, as the next Supreme Court vacancy came after
Nixon resigned and
Gerald Ford assumed the presidency, with Ford instead appointing
John Paul Stevens following the 1975 retirement of
William O. Douglas. Ford considered nominating Bork to replace
William Colby as
CIA Director, but his advisors convinced him to turn first to
Edward Bennett Williams and then
George H. W. Bush instead due to Bork's unpopularity and lack of experience in intelligence.
United States Circuit Judge 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, 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, 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. In 1986, President Reagan considered nominating Bork to the Supreme Court after
Chief Justice Warren E. 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 made the Supreme Court, as the Senate at that time was controlled 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 who voted against Bork's 1987 nomination were not first elected in the
November 1986 Senate elections.
U.S. Supreme Court nomination in the
Oval Office in July 1987|left President Reagan nominated Bork for associate justice of the
Supreme Court on July 1, 1987, to replace retiring Associate Justice
Lewis F. Powell Jr. A hotly contested
United States Senate debate over Bork's nomination ensued. Opposition was partly fueled by civil rights and women's rights groups, concerned about Bork's opposition to the authority claimed by the
federal government to impose standards of voting fairness upon states (at his confirmation hearings for the position of solicitor general, he supported the rights of Southern states to impose a
poll tax), and his stated desire to roll back civil rights decisions of the
Warren and
Burger courts. Bork is one of four Supreme Court nominees (along with
William Rehnquist,
Samuel Alito, and
Brett Kavanaugh) to have been opposed by the
American Civil Liberties Union. Bork was criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy", Democrats warned Reagan there would be a fight if Bork were nominated. Nevertheless, Reagan nominated Bork for Powell's seat on July 1, 1987. Following Bork's nomination, Senator
Ted Kennedy took to the Senate floor with a strong condemnation of him, declaring: 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, 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. ... The damage that President Reagan will do through this nomination, if it is not rejected by the Senate, could live on far beyond the end of his presidential term. President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice. Bork responded, "There was not a line in that speech that was accurate." In an obituary of Kennedy,
The Economist remarked that Bork may well have been correct, "but it worked". Opponents of Bork's nomination found the arguments against him justified, claiming that Bork believed the Civil Rights Act was unconstitutional, and he supported poll taxes, literacy tests for voting, mandated school prayer, and sterilization as a requirement for a job, while opposing free speech rights for non-political speech and privacy rights for gay conduct. residence in October 1987|leftIn 1988, an analysis published in
The Western Political Quarterly of
amicus curiae briefs filed by
U.S. Solicitors General during the
Warren and
Burger courts found that during Bork's tenure in the position during the
Nixon and
Ford Administrations (1973–1977), Bork took liberal positions in the aggregate as often as
Thurgood Marshall did during the
Johnson Administration (1965–1967) and more often than
Wade H. McCree did during the
Carter Administration (1977–1981), in part because Bork filed briefs in favor of the litigants in civil rights cases 75 percent of the time. Television advertisements produced by
People For the American Way and narrated by
Gregory Peck attacked Bork as an extremist. Kennedy's speech successfully fueled widespread public skepticism of Bork's nomination. The rapid response to Kennedy's "Robert Bork's America" speech stunned the Reagan White House, and the accusations went unanswered for months. During debate over his nomination,
Bork's video rental history was leaked to the press. His video rental history was unremarkable, and included such harmless titles as
A Day at the Races,
Ruthless People, and
The Man Who Knew Too Much. Writer Michael Dolan, who obtained a copy of the hand-written list of rentals, wrote about it for the
Washington City Paper. Dolan justified accessing the list on the ground that Bork himself had stated that Americans had only such privacy rights as afforded them by direct legislation. The incident led to the enactment of the 1988
Video Privacy Protection Act. To pro-choice rights legal groups, Bork's
originalist views and his belief that the Constitution did not contain a general "right to privacy" were viewed as a clear signal that, should he become a justice of the Supreme Court, he would vote to completely overrule the Court's 1973 decision in
Roe v. Wade. Accordingly, a large number of groups mobilized to press for Bork's rejection, and the 1987 Senate confirmation hearings became an intensely partisan battle. On October 23, 1987, the Senate denied Bork's confirmation, with 42 senators voting in favor and 58 senators voting against. Two Democratic senators (
David Boren of
Oklahoma, and
Fritz Hollings of
South Carolina) voted in favor of his nomination, while six Republican senators (
John Chafee of
Rhode Island,
Bob Packwood of
Oregon,
Arlen Specter of
Pennsylvania,
Robert Stafford of
Vermont,
John Warner of
Virginia, and
Lowell Weicker of
Connecticut) voted against it. His defeat in the Senate was the worst of any Supreme Court nominee since
George Washington Woodward was defeated 20–29 in 1845, and the third-worst on record. The seat to which Bork had been nominated went to Judge
Anthony Kennedy, who was unanimously approved by the Senate, 97–0. Bork, unhappy with his treatment in the nomination process, resigned his appellate court judgeship in 1988. A well known use of the verb "to bork" occurred in July 1991 at a conference of the
National Organization for Women in New York City. Feminist
Florynce Kennedy addressed the conference on the importance of defeating the
nomination of Clarence Thomas to the U.S. Supreme Court, saying: "We're going to bork him. We're going to kill him politically. This little creep, where did he come from?" Thomas was confirmed after the most divisive confirmation hearing in Supreme Court history to that point. In March 2002, the
Oxford English Dictionary added an entry for the verb "bork" as U.S. political slang, with this definition: "To defame or vilify (a person) systematically, esp. in the mass media, usually to prevent his or her appointment to public office; to obstruct or thwart (a person) in this way." Supreme Court Justice
Brett Kavanaugh, who occupies the seat Bork was nominated to, used the term during his own
contentious Senate confirmation hearing testimony, when he stated: "The behavior of several of the Democratic members of this committee at my hearing a few weeks ago was an embarrassment. But at least it was just a good old-fashioned attempt at borking."
Later work 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. On June 21, 1995 Netscape executives Jim Barksdale and Marc Andreessen met with Microsoft in Mountain View, CA. This meeting was referenced during the 1998 anti-trust suit brought against Microsoft by the U.S. Department of Justice and twenty states. Robert Bork worked as an advisor to Netscape during that time and famously labeled the June 21 date as "the Don Corleone meeting," referring to Microsoft's attempt to bully Netscape. 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. In 2011, he worked as a legal adviser for the
presidential campaign of Republican
Mitt Romney.
Advocacy of originalism Bork is known by
American conservatives for his theory that the best way to reconcile the role of the judiciary in the U.S. government against what he terms the "
Madisonian" or
"counter-majoritarian" dilemma of the judiciary making law without popular approval is for constitutional adjudication to be guided by the framers'
original understanding of the
United States Constitution. Reiterating that it is a court's task to adjudicate and not to "legislate from the bench," he advocated that
judges exercise restraint in deciding cases, emphasizing that the role of the courts is to frame "neutral principles" (a term borrowed from
Herbert Wechsler) and not simply
ad hoc pronouncements or subjective value judgments. Bork once said, "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else." Bork built on the influential critiques of the
Warren Court authored by
Alexander Bickel, who criticized the Supreme Court under
Earl Warren, alleging shoddy and inconsistent reasoning, undue
activism, and misuse of historical materials. Bork's critique was harder-edged than Bickel's, writing: "We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own." Bork's writings influenced judges such as
Associate Justice Antonin Scalia and
Chief Justice William Rehnquist of the
U.S. Supreme Court, and sparked vigorous debate within legal academia about how to
interpret the Constitution. Some conservatives criticized Bork's approach. Conservative scholar
Harry Jaffa criticized Bork (along with Rehnquist and Scalia) for failing to adhere to
natural law principles, and therefore believing that the Constitution says nothing about abortion or
gay rights (Jaffa believed that the Constitution
prohibited these things.)
Robert P. George explained Jaffa's critique this way: "He attacks Rehnquist and Scalia and Bork for their embrace of
legal positivism that is inconsistent with the doctrine of
natural rights that is embedded in the Constitution they are supposed to be interpreting." Bork, in turn, described adherents of natural law constitutionalism as fanatical. ==Works and views==