Robert Bork's Legacy on the Filibuster Debate

RENEE MONTAGNE, host:

The debate over the filibuster comes as the Justice Department is honoring the man whose nomination many believe marked the beginning of the current fight. Back in 1987, Robert Bork's nomination to the high court was fiercely contested and defeated. Today, he will receive the prestigious John Sherman Award for outstanding contributions to the field of antitrust law. Joining me is NPR legal affairs correspondent Nina Totenberg.

Good morning.

NINA TOTENBERG reporting:

Good morning.

MONTAGNE: Nina, when most people think of Robert Bork, they think of the bruising battle over his Supreme Court nomination and not antitrust law.

TOTENBERG: No, they don't think of antitrust law, but, in fact, that is the area of the law in which he was a star. He was a famous professor of antitrust at Yale and a famous legal theorist in the area. History, of course, will probably remember him more for other controversies in public life, starting with his role in the Watergate affair.

MONTAGNE: During which he fired the special prosecutor, Archibald Cox.

TOTENBERG: He fired him on orders from President Nixon after the attorney general and deputy attorney general both refused to and resigned. Bork, who was the solicitor general and a very respected solicitor general at that, was the third-ranking officer in the department and he carried out Nixon's orders.

MONTAGNE: And then Robert Bork went on to become a federal Appeals Court judge during the Reagan administration and eventually, as we know, nominated to the Supreme Court.

TOTENBERG: Yes, and those hearings marked the modern battle lines over judicial nominations. In the '50s, '60s and '70s, there may have been, and there were, ideological objections to nominees. Conservatives, for example, thought Abe Fortas was too liberal and too close to President Johnson. Southerners opposed Thurgood Marshall because of his role in the civil rights movement. In the Nixon administration, Democrats defeated two Supreme Court nominations, but in each of these battles, the opponents framed their opposition in non-ideological terms, ethical lapses or conflicts of interest, things of that sort.

MONTAGNE: And Bork was different.

TOTENBERG: Bork's opponents frankly opposed him because of his ideas, and in five days of hearings, Bork took them on. For example, he said that the Supreme Court was wrong in 1965 when it struck down a Connecticut law that made it a crime for even married couples to use birth control. Bork said individuals' right to conduct their intimate affairs is not protected in the Constitution because there's no right of privacy, either explicit or implicit. And, for example, here's part of an exchange he had with Senator Joseph Biden.

Senator JOSEPH BIDEN (Delaware): You said that the right of married couples to have sexual relations without fear of unwanted children is no more worthy of constitutional protection by the courts than the right of public utilities to be free of pollution control laws.

Mr. ROBERT BORK (Former Supreme Court Nominee): All I'm saying is that the judge has no way to prefer one to the other, and the matter should be left to the legislators.

TOTENBERG: On a whole host of subjects, from individual privacy to civil rights, he defied the conventional wisdom and said the Supreme Court had been wrong. Although the Democrats led the charge against Bork, they were joined in the end by six Republicans. But on the whole, the Bork nomination fight was a turning point. Republicans by and large were enraged by the attack on Bork. Conservative groups took the Bork fight sort of as a call to arms, and they have over the years since made control of the courts their rallying cry as you see this week in the Senate filibuster fight. In a way, it's the legacy of the Bork fight.

MONTAGNE: Nina, is there any significance politically to this award being given by the Justice Department to Robert Bork at this time?

TOTENBERG: Well, I have no way of knowing that, but I think you can be pretty sure that he probably wouldn't have gotten the award from a Democratic administration.

MONTAGNE: Nina, thanks very much.

TOTENBERG: Thank you.

MONTAGNE: NPR's Nina Totenberg.

This is NPR News. Transcript provided by NPR, Copyright NPR.