Robert Bork, the failed Supreme Court nominee who died today at age 85, was one of the most controversial high court nominees ever, thanks largely to his hostility to laws protecting civil rights, including LGBT rights.
Bork was a federal appeals court judge and former law professor when President Ronald Reagan nominated him to fill a Supreme Court vacancy in 1987, after Justice Lewis Powell retired. The nominee soon encountered strong opposition from liberals, who cited among other things a 1984 ruling in which he wrote that “private, consensual homosexual conduct is not constitutionally protected.”
Bork also had a record of opposing affirmative action, aspects of other civil rights laws, and court rulings that recognized a right to privacy and therefore struck down laws against contraception and abortion.
In a speech on the Senate floor, Sen. Edward M. Kennedy said, “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.”
Others testifying against his nomination included future president Bill Clinton, who had been a student of Bork’s at Yale Law School. Liberal activists also put together an anti-Bork media campaign that included TV commercials featuring actor Gregory Peck.
In the end, the Senate voted 58-42 against confirming Bork’s appointment. Then Reagan’s next nominee, Douglas Ginsburg, withdrew after his past marijuana use was revealed. The final, successful nominee to fill the Powell vacancy was Anthony Kennedy, who still serves on the court today and has become a key swing vote. Kennedy “has been a diehard conservative in some areas (like economic policy and the First Amendment) and an unabashed liberal in others (like gay rights and restrictions on capital punishment),” Atlantic blogger Andrew Cohen notes in a post today.
Some observers have criticized the Bork proceedings, saying his opponents distorted his positions and politicized the confirmation process excessively. Cohen, for one, writes that Bork’s experience has led subsequent Supreme Court nominees to keep silent about their beliefs, limiting themselves to “empty platitudes” in Senate testimony.
Bork went on to write books and work for conservative think tanks, and he remained an icon of the right. He continued to oppose LGBT rights; in a 2001 Wall Street Journal column, for instance, he decried “the radical redefinition of marriage” to include same-sex couples, and he backed a federal constitutional amendment to prevent legal recognition of same-sex marriage.
Bork died early today at a hospital in Arlington, Va., of complications from heart disease. The Washington Post has a full obit here.