In memoriam: Robert H. Bork

Article Highlights

  • John Bolton: Robert Bork fired Archibald Cox during Watergate, and paid for it the rest of his life

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  • Many of Robert Bork's opponents in the Senate engaged in straightforward character assassination

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  • Robert Bork never regretted the consequences of standing by his philosophical principles. Why else have them?

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Bob Bork was my antitrust professor at Yale Law School in 1972-73, where he was one of a small band of conservative/libertarian students and teachers.  Ralph Winter and Ward Bowman were the only other two like-minded professors, although they did have some fellow travelers among the professoriat who were merely New Deal liberals.

All three were both scholars and public policy writers, and all were associated with AEI over the years in various ways.   

So few were our numbers at Yale Law that when the White House announced Bob’s name for solicitor general, Ralph Winter joked that the first sentence in the Yale Daily News coverage should read:  “Yesterday, President Nixon nominated 20 percent of all the conservatives at Yale Law School to be solicitor general.”  Bob himself could have come up with that line, his sense of humor being wry and self-deprecating.

Bob was central to the development and growth of the law-and-economics movement, and Bob’s book, "The Antitrust Paradox," remains a towering intellectual achievement, dwarfing everything else in the field.  I remember sitting behind students who were stunned that economics could actually inform antitrust case law, as if mere reason should be allowed to get in the way of their ideological objectives.

One of Bob’s most important services to our country is also one of the most misunderstood, during the “Saturday Night Massacre.”  When Nixon gave Attorney General Elliot Richardson the order to fire Watergate Special Prosecutor Archibald Cox, Richardson resigned, as he had committed to do in his Senate confirmation hearings if the White House ever tried to interfere with Cox’s investigation. Deputy AG William Ruckelshaus also resigned, as he had similarly pledged to do. 

By virtue of these resignations, Bork, the third-ranking official at the Department of Justice, became acting attorney general. Although he had been confirmed before the Watergate affair had become an issue, and never been asked to make such a pledge, Bork told Richardson and Ruckelshaus that he thought he should also resign. 

They urged him not to, because then the entire top leadership of the department might have followed suit, and the country plunged into a constitutional crisis the likes of which we had never seen.  Richardson and Ruckelshaus urged him to fire Cox to preserve the department’s legitimacy. 

"(Bork) never regretted the consequences of standing by his philosophical principles. Why else have them?" -- John R. BoltonSaid Richardson: “You’ve got the gun now, Bob.  It’s your duty to pull the trigger.”  Bork did fire Cox, and paid for it the rest of his life. Gerald Ford should have nominated him to the Supreme Court, but chose John Paul Stevens instead, because Ford wanted to avoid the controversy sending up Bork’s name would have caused. 

But the worst was yet to come.  In the most shameful act in the Senate’s long history of considering presidential nominations, in 1987 Bork was rejected for the Supreme Court seat he deserved and our country would have benefited from.  Many of his opponents in the Senate engaged in straightforward character assassination. 

Bork flinched only once, when Sen. Patrick Leahy questioned him on legal fees he had earned during one period when he was teaching at Yale Law School.  Leahy felt that the fees were high, and Bork had to reveal that he was earning this extra income to pay for the medical expenses associated with his first wife’s ultimately unsuccessful battle with cancer.  After a brief recess, Bork returned, and continued to run intellectual rings around his Senate adversaries.  Maybe that was the real problem.

Our country will greatly miss Bob Bork.  He was a friend and inspiration to many at AEI and around the country.  He never regretted the consequences of standing by his philosophical principles.  Why else have them?

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