Bork Confirmation Battle

A historic document from September 15, October 9 and 13, 1987

Page 717

Introduction

The resignation of Supreme Court Justice Lewis F. Powell, Jr., on June 26 gave President Ronald Reagan an opportunity to stamp his conservative agenda on the nation's highest judicial body and to have an impact long after his presidency ended. But Reagan's first choice to fill the vacancy, Robert H. Bork, was rejected 42-58 by the Senate October 23. (Powell resignation, p. 577)

The president announced the nomination of Bork, a judge on the U.S. Court of Appeals for the District of Columbia, on July 1. The Senate immediately began preparing for what was to become the most vigorous and lengthy Court nomination fight since President Richard Nixon nominated Clement F. Haynsworth, Jr., and G. Harrold Carswell to the Court in 1969 and 1970 (both were rejected).

In an opening statement before the Senate Judiciary Committee September 15, Bork summarized his “philosophy of judging” as “neither liberal nor conservative.” But as the hearings progressed it appeared that confirmation of Reagan's nominee was in jeopardy. The Judiciary Committee October 6 voted 9-5 to send Bork's name to the floor with a recommendation that it be rejected. Three days later, a defiant Bork announced that he would not withdraw from the fight and asked for a Senate floor vote, although he said he had “no illusions” about the outcome. Charging that events had transformed the process of confirming judges into a political campaign that “should not occur again,” he said, “Federal judges are not appointed to decide cases according to the latest opinion polls.” When judicial nominees “are treated as political candidates

Page 718

the effect will be to erode public confidence and endanger the independence of the judiciary.”

On October 13, the committee issued its final report recommending 9-5 against the nomination.

Bork's Record

The Supreme Court for a number of years had been equally divided among justices who supported an activist role in matters of social policy—such as affirmative action and women's rights—and those who preferred to interpret the Constitution strictly, basing many of their decisions on arguments that the Court should not step into legislative and political affairs, which rested with the two other branches of government. Powell had been widely considered the pivotal justice in decisions affecting those considerations, siding frequently with the “activists.” Bork, in contrast, was a conservative. His statements on abortion and the role of the federal courts and his decisions on the appeals court suggested he would have tilted the Supreme Court to the right.

Bork's four years as U.S. solicitor general had thrust him into the spotlight. Following President Nixon's order, Bork fired special Watergate prosecutor Archibald Cox in 1973, after Attorney General Elliot L. Richardson and Deputy Attorney General William D. Ruckelshaus resigned their offices rather than fire Cox. The incident quickly became known as the “Saturday night massacre” and prompted the introduction of impeachment resolutions against Nixon.

Bork left the Justice Department in 1977 to teach at Yale University. In 1981 he returned to Washington, where he practiced law until Reagan appointed him to the appeals court in 1982. Bork remained in the public eye through provocative interviews, extensive legal writings, and congressional testimony. In a 1981 appearance before a Senate Judiciary subcommittee, for example, Bork said that the high Court's 1973 Roe v. Wade decision, which established a constitutional right to abortion, was “an unconstitutional decision, a serious and wholly unjustifiable usurpation of state legislative authority. [The decision] is by no means the only example of such unconstitutional behavior by the Supreme Court.”

The Court majority had premised the Roe decision on a right of privacy, a doctrine Bork rejected in a 1984 decision upholding a Navy policy prohibiting homosexual activity. Dissenters on the appeals court challenged his conclusion, contending that Bork was substituting his “preferences for the constitutional principles established by the Supreme Court.”

Earlier in his career, Bork had criticized the Supreme Court under Chief Justice Earl Warren, a Court that was responsible for historic civil rights advances and new protections for the rights of criminal defendants. Chastising the Court for “judicial activism,” Bork wrote in 1977

Page 719

that “We have also damaged law, and created disrespect for it, through our failure to observe the distinction, essential to democracy, between judges and legislators.” Bork continued, “The era of the Warren Court was, in my opinion, deeply harmful to the prestige of law.”

The Confirmation Battle

Well before the Judiciary Committee began its hearings, civil rights groups launched a campaign to frame the nomination as one of the most important decisions senators would face in their careers. At stake, they believed, were decades of rulings that broke down the barriers of racial discrimination in schools, housing, and employment, and that gave women the right to an abortion.

The Bork nomination fueled an unprecedented lobbying effort by both liberal and conservative groups. His views on topics from antitrust to free speech to privacy rights, and his often pungent manner of expressing them, prompted the most vigorous opposition to a judicial nomination in nearly two decades. A panoply of civil rights and civil liberties groups, including the American Civil Liberties Union, Common Cause, the AFL-CIO, and the Leadership Conference (an umbrella group of some 180 organizations) joined forces to keep Bork off the Court. Active Bork supporters, led by Reagan and the White House staff, included conservative organizations such as the Free Congress Foundation and Phyllis Schlafly's Eagle Forum.

“Everybody has made this [nomination] priority No. 1,” said Art Kropp, executive director of People for the American Way, an organization concerned with civil liberties. “Nobody's holding anything back on this one,” said a lobbyist active in the conservative community. “It's high stakes for all sides.”

Within the Senate, the debate over the nomination took on harsh political overtones when Senate Minority Leader Robert Dole, R-Kan.—a candidate for the Republican presidential nomination—July 27 accused Judiciary Chairman Joseph R. Biden, Jr., D-Del.—then a Democratic presidential aspirant—of stalling the nomination. The next day, Senate Majority Leader Robert c. Byrd, D-W. Va., cautioned colleagues not to turn the Bork nomination into a partisan matter. Meanwhile, Reagan used an August 12 nationally televised address to declare that winning confirmation for Bork was a major priority of his administration.

Philosophical Debate in Hearings

The confirmation hearings gave the Senate and the public an opportunity to witness an unusually rich debate over legal philosophy. The dialogue in the Senate Judiciary Committee as Bork sparred with opposing senators and amiably answered the gentler questions of supporters was based on the bedrock concepts that governed American

Page 720

society, among them the right to privacy, equal protection, freedom of speech, and due process of law.

Bork asserted that his judicial philosophy was “simply a philosophy of judging which gives the Constitution a full and fair interpretation.” Bork said he believed in a right to privacy but disliked the way the Supreme Court had developed it; that he believed the equal protection clause of the Constitution protected blacks, other minorities, and women but felt the Court's reasoning in this area was suspect; that he supported broad protections for speech but continued to have theoretical problems with an important Supreme Court decision defining that right; and that he had acted appropriately in firing Watergate special prosecutor Cox.

However, Bork's critics continued to assert that he was a radical theorist who was outside the mainstream of American legal thought. They professed doubts about some of the positions he expressed during the hearings because, they claimed, they were at such variance with his past positions.

Although the administration launched an intense lobbying campaign on behalf of its nominee, observers agreed that there were several reasons for the failure: underestimating the intensity and breadth of the opposition; failing to energize Reagan's traditional supporters; and adopting a strategy that was essentially defensive.

When debate began on the Senate floor, fifty-four senators had already declared their opposition to Reagan's appointment. Thirty-nine had expressed support and only seven were officially uncommitted. Four of the uncommitted voted against Bork, while three decided in favor of confirmation. After the October 23 vote, Byrd said it was time to “start the healing, to lower our voices.” Bork's supporters said they were pleased that the debate had been held. “It was the correct thing,” said Orrin G. Hatch, R-Utah, a member of the Judiciary Committee and one of Bork's strongest supporters. “There was a record made.”

New Nominees: Ginsburg, Kennedy

On October 29, Reagan announced the nomination of Douglas H. Ginsburg, a relatively unknown and young (forty-one years old) federal appeals court judge. The Ginsburg nomination surprised many in the Senate who had expected Reagan to select a more moderate conservative who would have had an easier time winning confirmation. Again, the nomination ran into trouble, even before hearings began. Ginsburg November 7 withdrew his name from consideration after confirming news reports that he had smoked marijuana in college and as a law professor, that there might have been a conflict of interest in his participation in certain cases while on the bench, and that he had misrepresented his courtroom experience. Four days later, Reagan announced his third choice, Anthony M. Kennedy, who had been a judge on the U.S. Ninth Circuit Court of Appeals for twelve years. The nomination of an experienced

Page 721

judge and “mainstream conservative” was well received on Capitol Hill, where other pressing problems were looming and members were weary of nomination battles.

Following are excerpts from the texts of Robert H. Bork's September 15, 1987, statement before the Senate Judiciary Committee in its opening day of hearings on his nomination to be an associate justice of the Supreme Court; his October 9 statement refusing to withdraw his name before the Senate floor vote; and excerpts from the October 13 committee report recommending against confirmation.

BORK'S OPENING STATEMENT

The judge's authority derives entirely from the fact that he is applying the law and not his personal values. That is why the American public accepts the decisions of its courts, accepts even decisions that nullify the laws a majority of the electorate or of their representatives voted for.

The judge, to deserve that trust and that authority, must be every bit as governed by law as is the Congress, the President, the state governors and legislatures, and the American people. No one, including a judge, can be above the law. Only in that way will justice be done and the freedom of Americans assured.

How should a judge go about finding the law? The only legitimate way, in my opinion, is by attempting to discern what those who made the law intended. The intentions of the lawmakers govern whether the lawmakers are the Congress of the United States enacting a statute or whether they are those who ratified our Constitution and its various amendments.

Where the words are precise and the facts simple, that is a relatively easy task. Where the words are general, as is the case with some of the most profound protections of our liberties—in the Bill of Rights and in the Civil War Amendments—the task is far more complex. It is to find the principle or value that was intended to be protected and to see that it is protected.

As I wrote in an opinion for our court, the judge's responsibility “is to discern how the Framers' values, defined in the context of the world they knew, apply in the world we know.”

If a judge abandons intention as his guide, there is no law available to him and he begins to legislate a social agenda for the American people. That goes well beyond his legitimate power.

He or she then diminishes liberty instead of enhancing it. That is why I agree with Judge Learned Hand, one of the great jurists in our history, when he wrote that the judge's

"authority and his immunity depend upon the assumption that he speaks with the mouths of others: The momentum of his utterances must be greater than any which his personal reputation and character can command if it is to do the work assigned to it—if it is to

Page 722

stand against the passionate resentments arising out of the interests he must frustrate."

To state that another way, the judge must speak with the authority of the past to the present.

The past, however, includes not only the intentions of those who first made the law, it also includes those past judges who interpreted it and applied it in prior cases. That is why a judge must have great respect for precedence. It is one thing as a legal theorist to criticize the reasoning of a prior decision, even to criticize it severely, as I have done. It is another and more serious thing altogether for a judge to ignore or overturn a prior decision. That requires much careful thought.

Times come, of course, when even a venerable precedent can and should be overruled. The primary example of a proper overruling is Brown against the Board of Education, the case which outlawed racial segregation accomplished by government action. Brown overturned the rule of separate but equal laid down 58 years before in Plessy against Ferguson. Yet Brown, delivered with the authority of a unanimous Court, was clearly correct and represents perhaps the greatest moral achievement of our constitutional law.

Nevertheless, overruling should be done sparingly and cautiously. Respect for precedent is a part of the great tradition of our law, just as is fidelity to the intent of those who ratified the Constitution and enacted our statutes. That does not mean that constitutional law is static. It will evolve as judges modify doctrine to meet new circumstances and new technologies. Thus, today we apply the First Amendment's guarantee of the freedom of the press to radio and television, and we apply to electronic surveillance the Fourth Amendment's guarantee of privacy for the individual against unreasonable searches of his or her home.

I can put the matter no better than I did in an opinion on my present court. Speaking of the judge's duty, I wrote:

"The important thing, the ultimate consideration, is the constitutional freedom that is given into our keeping. A judge who refuses to see new threats to an established constitutional value and hence provides a crabbed interpretation that robs a provision of its full, fair and reasonable meaning, fails in his judicial duty. That duty, I repeat, is to ensure that the powers and freedoms the Framers specified are made effective in today's circumstances."

But I should add to that passage that when a judge goes beyond this and reads entirely new values into the Constitution, values the Framers and the ratifiers did not put there, he deprives the people of their liberty. That liberty, which the Constitution clearly envisions, is the liberty of the people to set their own social agenda through the processes of democracy.

Conservative judges frustrated that process in the mid-1930s by using the concept they had invented, the Fourteenth Amendment's supposed guarantee of a liberty of contract, to strike down laws designed to protect workers and labor unions. That was wrong then and it would be wrong now.

My philosophy of judging, Mr. Chairman, as you pointed out, is neither

Page 723

liberal nor conservative. It is simply a philosophy of judging which gives the Constitution a full and fair interpretation but, where the Constitution is silent, leaves the policy struggles to the Congress, the President, the legislatures and executives of the 50 states, and to the American people.

I welcome this opportunity to come before the Committee and answer whatever questions the members may have. I am quite willing to discuss with you my judicial philosophy and the approach I take to deciding cases. I cannot, of course, commit myself as to how I might vote on any particular case and I know you would not wish me to do that.

BORK'S OCTOBER 9 STATEMENT

Good afternoon, ladies and gentlemen. More than three months ago, I was deeply honored to be nominated by the President for the position of Associate Justice of the Supreme Court of the United States.

In the 100 days since then, the country has witnessed an unprecedented event. The process of confirming justices for our nation's highest Court has been transformed in a way that should not and, indeed, must not be permitted to occur again. The tactics and techniques of national political campaigns have been unleashed on the process of confirming judges. That is not simply disturbing, it is dangerous.

Federal judges are not appointed to decide cases according to the latest opinion polls. They are appointed to decide cases impartially, according to law. But when judicial nominees are assessed and treated like political candidates, the effect will be to chill the climate in which judicial deliberations take place, to erode public confidence in the impartiality of courts, and to endanger the independence of the judiciary.

In politics, the opposing candidates exchange contentions in their efforts to sway voters. In the give and take of political debate, the choice will, in the end, be clear. A judge, however, cannot engage—political campaigning and the judge's functions are flatly incompatible.

In 200 years, no nominee for justice has ever campaigned for that high office. None ever should, and I will not. This is not to say that my public life, the decisions I have rendered, the articles I have written should be immune from consideration. They should not. Honorable persons can disagree about those matters. But the manner in which the debate is conducted makes all the difference. Far too often, the ethics that should prevail have been violated, and the facts of my professional life have been misrepresented.

It is, to say no more, unsatisfying to be the target of a campaign that must, of necessity, be one-sided; a campaign in which the candidate, a sitting federal judge, is prevented by the plain standards of his profession from becoming an energetic participant.

Were the fate of Robert Bork the only matter at stake, I would ask the President to withdraw my nomination. The most serious and lasting injury in all of this is not to me, nor is it to all of those who have steadfastly supported

Page 724

my nomination and to whom I am deeply grateful. Rather the damage is to the dignity and integrity of law and of public service in this country. I therefore wish to end this speculation—there should be a full debate and a final Senate decision.

In deciding on this course, I harbor no illusions. But a crucial principle is at stake. That principle is the way in which we select the men and women who guard the liberties of all the American people. That should not be done through public campaigns of distortion.

If I withdraw now, that campaign would be seen as a success, and it would be mounted against future nominees. For the sake of the federal judiciary and the American people, that must not happen. The deliberative process must be restored.

In the days remaining, I ask only that voices be lowered, the facts respected, and the deliberations conducted in a manner that will be fair to me and to the infinitely larger and more important cause of justice in America.

Thank you.

JUDICIARY COMMITTEE REPORT

The Committee on the Judiciary, to which was referred the nomination of Judge Robert H. Bork to be an Associate Justice of the United States Supreme Court, having considered the same reports unfavorably thereon, a quorum being present, by a vote of nine yeas and five nays, with the recommendation that the nomination be rejected.

Background and Qualifications

The committee received the President's nomination of Judge Robert H. Bork to be an Associate Justice of the United States Supreme Court on July 7, 1987. The hearings on Judge Bork's nomination were held on September 15, 16, 17, 18, 19, 21, 22, 23, 25, 28, 29, and 30. The nominee completed 30 hours of testimony, extending over four-and-a-half days, before the committee. The 12 days of hearings lasted approximately 87 hours, and during that time the committee heard from 112 witnesses.

The testimony of public witnesses was organized so as to encourage as full and complete a discussion as possible of the various subjects relevant to this nomination. An effort was made to bring before the committee some of this nation's most eminent legal scholars and most distinguished lawyers and public servants to testify both in favor of and against the nominee. Where appropriate, witnesses testified in panels organized by subject matter, facilitating thorough questioning and debate of each issue. The committee was particularly privileged to receive testimony from President Gerald Ford, former Chief Justice Warren Burger and five former Attorneys General of the United States.

For the first time since the American Bar Association's (ABA) Standing Committee on Federal Judiciary began evaluating Supreme Court nominees,

Page 725

a substantial minority of the Standing Committee found a Supreme Court nominee to be “not qualified” to serve on the nation's highest court. In evaluating the nomination of Judge Bork, Harold R. Tyler, Jr., Chairman of the Standing Committee (and a former federal district court judge), testified that “ten members voted well-qualified; one, not opposed, and four, not qualified.”

No Supreme Court nominee who has received even a single “Not Qualified” vote from the Standing Committee has ever been confirmed by the Senate.

The 15 members of the ABA Standing Committee conducted an extensive investigation of Judge Bork, including interviews with five members of the Supreme Court, with many of his colleagues on the D.C. Circuit Court of Appeals, and with approximately 170 other federal and state court judges, including female and minority members of the bench, throughout the United States. The ABA Committee also interviewed approximately 150 practicing attorneys, 79 law school deans and professors, 11 of Judge Bork's former law clerks and a number of present or former lawyers who served under Judge Bork in the office of the Solicitor General when he headed that office.

Judge Bork's opinions were examined by the dean and 10 professors at the University of Michigan Law School. The Standing Committee reviewed and considered written submissions from a number of institutions and groups, including the White House, the Lawyers Committee for Civil Rights Under Law, the past chairmen of the Antitrust Section of the ABA, the NAACP Legal Defense and Education Fund, Inc., the American Civil Liberties Union, the National Women's Law Center, Public Citizen Litigation Group and People for the American Way.

Finally, Judge Bork was personally interviewed on two separate occasions, for a total of about six hours, by three members of the ABA Standing Committee. A second interview was unprecedented for a Supreme Court nominee, but was considered necessary because of “some additional questions” that arose from discussion among members of the ABA Committee and submissions of various groups.

Based on the criteria identified above, a majority of the ABA Committee concluded that Judge Bork is “well qualified” for appointment to the Supreme Court. Five members of the committee concluded that Judge Bork did not merit such a rating because of their concerns about his judicial temperament. Such concerns were related to Judge Bork's “compassion, open-mindedness, his sensitivity to the rights of women and minority persons or groups and comparatively extreme views respecting constitutional principles or their application, particularly within the ambit of the Fourteenth Amendment.” In addition, one dissenting member also expressed reservations about what that member termed inconsistent and possibly misleading recollections by Judge Bork of the events surrounding the resignations of Attorney General Elliot Richardson and Deputy Attorney General William Ruckelshaus during the Watergate episode.

Page 726

The committee has received letters from approximately 2,000 members of the legal academic community in opposition to Judge Bork's confirmation. Simply put, the extent of this opposition is unprecedented. Prior to this nomination, the maximum number of law professors voicing their disapproval of a judicial nominee had been 300, in connection with the nomination of Judge [G. Harrold] Carswell.

The committee also received a letter signed by 32 law school deans. This letter stated:

Judge Bork has developed and repeatedly expressed a comprehensive and fixed view of the Constitution that is at odds with most of the pivotal decisions protecting civil rights and liberties that the Supreme Court has rendered over the past four decades. If Judge Bork were to be confirmed, his vote could prove determinative in turning the clock back to an era when constitutional rights and liberties, and the role of the judiciary in protecting them, were viewed in a much more restrictive way.

The Constitution's Unenumerated Rights

I. Judge Bork's View of the Constitution Disregards This Country's Tradition of Human Dignity, Liberty and Unenumerated Rights

The Bork hearings opened on the eve of the celebration of the 200th anniversary of our Constitution. The hearings proved to be about that Constitution, not just about a Supreme Court nominee.

The hearings reaffirmed what many understand to be a core principle upon which this nation was founded: Our Constitution recognizes inalienable rights and is not simply a grant of rights by the majority.

Against this understanding of the Constitution, and of human dignity, Judge Bork offers an alternative vision—that Americans have no rights against government, except those specifically enumerated in the Constitution.

A. Judge Bork's Judicial Philosophy Does Not Recognize the Concept of Unenumerated Rights and Liberties

1. Judge Bork's Core Theory. Judge Bork has consistently described his constitutional theory as “intentionalist,” meaning that he considers it the function of a judge to determine the intentions of the body that wrote the laws and to apply those intentions to the case brought before the court. Interpreting law is thus a matter of discerning the original intent of those responsible for making it.

Judge Bork reaffirmed this view in his opening statement.

The judge's authority derives entirely from the fact that he is applying the law and not his own personal values. How should a judge go about finding the law? The only legitimate way is by attempting to discern what those who made the law intended. The intentions of the lawmakers govern, whether the

Page 727

lawmakers are the Congress of the United States enacting a statute or those who ratified our Constitution and its various amendments.

At the end of four and one-half days of testimony, Judge Bork confirmed that he had not altered his basic philosophy.

2. Judge Bork's Judicial Philosophy Leads Him to Conclude that the Constitution “Specified Certain Liberties and Allocates All Else to Democratic Processes.” The implications of Judge Bork's theory of original intent are quite clear from his writings, speeches and testimony. The most dramatic consequence of his theory is the rejection of the concept of unenumerated rights and liberties. He has consistently held to the view, both before and during the hearings, that the Constitution should not be read as recognizing an individual right unless that right can be specifically found in a particular provision of the document.

In particular, Judge Bork has repeatedly rejected the well-established line of Supreme Court decisions holding that the “liberty” clauses of the Fifth and Fourteenth Amendments protect against governmental invasion of a person's substantive personal liberty and privacy. He has said, for example, that:

[T]he choice of “fundamental values” by the Court cannot be justified. Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other. The judge must stick close to the text and the history, and their fair implications, and not construct new rights. (“Neutral Principles and Some First Amendment Problems,” 47 Indiana Law Journal (1971).)

Judge Bork has also disregarded the text of the Ninth Amendment, which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In Judge Bork's view, while there are alternative explanations for the Amendment,

if it ultimately turns out that no plausible interpretation can be given, the only recourse for a judge is to refrain from inventing meanings and ignore the provision, as was the practice until recently. (“Interpretation of the Constitution,” 1984 Justice Lester W. Roth Lecture, University of So. California, October 25, 1984.)

This suggested disregard for the Amendment is consistent with Judge Bork's general recommendation about a judge's role “when his studies leave him unpersuaded that he understands the core of what the Framers intended” with respect to a particular constitutional provision.

[T]he history surrounding the drafting and ratification of the Bill of Rights indicates that there had to be an express guarantee that unenumerated rights would be fully protected. The Ninth Amendment is at the core of both the Constitution and the ratification debates. The concept of unenumerated rights illustrates the depth of the tradition that the Founders meant to protect by the Ninth Amendment.

Page 728

C. Judge Bork's Approach to Liberty and Unenumerated Rights Is Outside the Tradition of Supreme Court Jurisprudence

Judge Bork's approach to liberty and unenumerated rights sets him apart from every other Supreme Court Justice. Indeed, not one of the 105 past and present Justices of the Supreme Court has ever taken a view of liberty as narrow as that of Judge Bork. As Professor [Laurence] Tribe testified:

If [Judge Bork] is confirmed as the 106th Justice, [he] would be the first to read liberty as though it were exhausted by the rights the majority expressly conceded individuals in the Bill of Rights. He would be the first to reject an evolving concept of liberty and to replace it with a fixed set of liberties protected at best from an evolving set of threats.

In particular, Judge Bork's philosophy is outside the mainstream of such great judicial conservatives as Justices [John Marshall] Harlan, [Felix] Frankfurter and [Hugo] Black, as well as such recent conservatives as Justices [Potter] Stewart, [Lewis F.] Powell [Jr.], [Sandra Day] O'Connor and Chief Justice [Warren E.] Burger. Each of these members of the court accepted and applied some concept of liberty, substantive due process and unenumerated rights.

As summarized by former Secretary of Transportation William T. Coleman, Jr.:

There can be no question that privacy and substantive individual liberty interests are clearly within the Constitution as written. Moreover, for more than half a century, the Supreme Court, by recognizing the constitutional basis for the protection of such fundamental liberties, has been able to respond in a principled fashion to the problems and abuses which the framers could not have foreseen and thus cannot plausibly be said to have intended to immunize from constitutional protection. Judge Bork simply refuses to use the specific text “liberty” and over sixty years of Supreme Court jurisprudence or, if necessary (which it is not), the open-textured language of the Due Process Clause, to afford them constitutional protection from any intrusion in addition to mere physical restraint.

Judge Bork's narrow definition of liberty sets him apart from the tradition and history from which this nation was conceived. As Professor [Philip] Kurland testified:

Judge Bork's judicial philosophy reveals an unwillingness to recognize that the principal objective of the framers of our Constitution two hundred years ago was the preservation and advancement of individual liberty. Liberty was indeed the watchword of the national convention and of the state ratifying conventions as well. The Constitution did not create individual rights; the people brought them to the Convention with them and left the Convention with them, some enhanced by constitutional guarantees. The Bill of Rights in guaranteeing more, made sure that none was adversely affected.

Judge Bork's definition of liberty also sets him apart from every Justice who has ever sat on the Supreme Court. Indeed, it is because of the Court that

"an established part of our legal tradition [is] to view the Constitution as forbidding government abuses which, in the words of Justice Frankfurter,

Page 729

'offend those canons of decency and fairness which express the notions of justice of English-speaking peoples.'"

II. The Theory of Precedent or “Settled Law” Held by Judge Bork Cannot Transform His Judicial Philosophy into an Acceptable One for the Supreme Court

Judge Bork has applied his theory of the Constitution to attack a large number of Supreme Court decisions, including many landmark cases. Reconsidering these cases would reopen debate on many significant issues. Perhaps this is why Judge Bork said in response to a question by Senator [Strom] Thurmond, “anybody with a philosophy of original intent requires a theory of precedent.” While a theory of precedent appears to lessen the friction between Judge Bork's philosophy and accepted Supreme Court decisions, it creates in the end many uncertainties and concerns of its own.

Prior to the hearings, Judge Bork had occasionally expressed the view that some decisions ought now to be upheld, even though wrong under his theory of original intent.

Under questioning by Senator Thurmond Judge Bork said:

What would I look at [before overruling a prior decision]? Well, I think I would look and be absolutely sure that the prior decision was incorrectly decided. That is necessary. And if it is wrongly decided—and you have to give respect to your predecessors' judgment on these matters—the presumption against overruling remains, because it may be that there are private expectations built up on the basis of the prior decision. It may be that governmental and private institutions have grown up around that prior decision. There is a need for stability and continuity in the law. There is a need for predictability in legal doctrine.

The committee finds that Judge Bork's ideas concerning precedent or settled law, in both their general terms as well as the manner in which Judge Bork applies them to particular cases, raise a number of serious concerns.

Judge Bork's embrace of precedent sets up a sharp tension with his often repeated proclamations of the ease with which a judge with his views can overrule erroneous decisions. Judge Bork's record, in fact, strongly suggests a willingness to “reformulate” “broad areas of constitutional law.”

Prior to the hearings, Judge Bork seemed to elevate his views of original intent over respect for precedent: “Supreme Court justice[s] can always say their first obligation is to the Constitution, not to what their colleagues said 10 years before.” (“Justice Robert H. Bork: Judicial Restraint Personified,” California Lawyer, May 1985, at 25.) During the hearings, Senator [Edward M.] Kennedy played an audio tape of the question and answer period following a 1985 speech in which Judge Bork made perhaps his clearest declaration to that effect:

I don't think that in the field of constitutional law precedent is all that important. I say that for two reasons. One is historical and traditional. The court has never thought constitutional precedent was all that important. The reason being that if you construe a statute incorrectly, the Congress can pass a

Page 730

law and correct it. If you construe the Constitution incorrectly Congress is helpless. Everybody is helpless. If you become convinced that a prior court has misread the Constitution I think it's your duty to go back and correct it. Moreover, you will from time to time get willful courts who take an area of law and create precedents that have nothing to do with the name of the Constitution. And if a new court comes in and says, 'Well, I respect precedent,' what you have is a ratchet effect, with the Constitution getting further and further away from its original meaning, because some judges feel free to make up new constitutional law and other judges in the name of judicial restraint follow precedent. I don't think precedent is all that important. I think the importance is what the Framers were driving at, and to go back to that. (Canisius College Speech, October 8, 1985, emphasis added.)

The committee finds that Judge Bork's views pose a serious dilemma. Judge Bork has strongly suggested a reformation in constitutional law, one that will bring a “second wave in constitutional theory.” Although perhaps open to differing interpretations, the committee is concerned that the “second wave” is aimed at reform in the courts—in the decisions courts reach, not just in the classroom as some academic exercise. Against this drive to pursue his views on original intent, and to “sweep the elegant, erudite, pretentious, and toxic detritus of non-originalism out to sea,” Judge Bork has erected the breakwater of his theory of precedent. The question is: How much will it hold back?

At the very least, Judge Bork's opposing forces pose a dilemma for litigants. As Robert Bennett, Dean of the Northwestern University School of Law, testified:

A moment's reflection will show that it will not do to say that a case was wrong but I will not vote to overrule it. What are lawyers and litigants to do with that case when the next one arises that is a little bit different? Are they to appeal to what the judge says is constitutionally right or to the precedent he says he will tolerate, even though it is wrong?

To be sure all judges suffer from this dilemma to a degree, but few insist that they know the route to constitutional truths with the vehemence that Judge Bork does. For that reason, I remain baffled and concerned about Judge Bork's likely approach to the use of precedent, despite the assurances he has offered.

The committee believes there is a substantial risk that Judge Bork would resolve this dilemma by reading a prior decision very narrowly, so that it had little, if any, substantial effect on future decisions, notwithstanding that it is never overruled. In Judge Bork's terms, a prior decision can lose its “dynamic” or “generative” force through another kind of barren reading, this time of the past decision itself.

The committee finds that there are substantial uncertainties in the extent to which Judge Bork's respect for settled law would operate as a serious curb on his pursuit of his idea of original intent. All that is necessary is to understand what one witness called the “lens effect:” Judge Bork would simply see future cases through a lens that embodied his own strong views about original intent and would thereby be highly likely to see the erroneous, but settled decisions, as inapplicable to new situations.

Judge Bork has said that “the Court's treatment of the Bill of Rights is

Page 731

theoretically the easiest to reform.” Decisions involving the Bill of Rights largely involve the expansion of individual rights. As such, complex social institutions and economic structures do not usually build up around them. They are thus typically different from cases like those expanding the power of Congress to regulate commerce or the power of the U.S. government to issue paper money as legal tender. These latter cases have become, in Judge Bork's words, “the basis for a large array of social and economic institutions, [therefore] overruling them would be disastrous.”

The Supreme Court's prior decisions, whether settled or not, cannot cover all new situations, under even the broadest reading of those cases.

In the committee's view, respect for precedent, as Judge Bork expressed it, does not alleviate the concern that the nominee would pursue his particular theory of original intent. It does not remove the risk that important precedents preserving individual liberties and human dignity would be robbed of their generative force. And it in no way compensates for his rejection of the tradition of unenumerated rights, a tradition that must be maintained to deal with new issues as they arise in the future.

A Critical Analysis of Judge Bork's Positions on Leading Matters

I. The Right to Privacy—The Right to Be Let Alone

The constitutional right to privacy has been a major part of Judge Bork's attack on the jurisprudence of the Supreme Court. In 1971, for example, he denounced the first modern privacy decision, Griswold v. Connecticut (1965), as “unprincipled” and “intellectually empty.” Griswold concerned a law making it a crime for anyone to use birth control. Judge Bork said that the desire of a “husband and wife to have sexual relations without unwanted children” was indistinguishable, for constitutional purposes, from the desire of an electric utility company to “void a smoke pollution ordinance.” “The cases,” he said, “are identical.”

Judge Bork reiterated his attack on Griswold after becoming a federal court judge.

Judge Bork's attacks on the privacy right have extended to the principal cases upon which Griswold relied, and would extend, presumably, to all the cases subsequent to Griswold, although Judge Bork has identified only Roe v. Wade by name.

As a lower court judge, Judge Bork acknowledged that his arguments against privacy cases were “completely irrelevant to the function of a circuit judge. The Supreme Court has decided that it may create new constitutional rights and, as judges of constitutionally inferior courts, we are bound absolutely by that determination.”

At the hearings, Judge Bork repeated in various ways the claim that although “[t]here is a lot of privacy in the Constitution,” there is no “generalized” right to privacy of the kind necessary to support Griswold

Page 732

and its progeny. He testified that in the Constitution there is no “unstructured, undefined right of privacy [such as the right] that Justice Douglas elaborated [in Griswold].”

It became clear that Judge Bork also believes that there is no constitutional right extending privacy protections beyond those provided by specific amendments.

Given Judge Bork's extensive experience in analyzing these matters, his steadfast rejection of the tradition of unenumerated rights and his professed inability thus far to find any constitutional warrant for such a right, there is little, if any, prospect that a new argument will be presented that is both unique and convincing to him.

As Chairman [Joseph P.] Biden concluded after two-and-a-half weeks of hearings:

Will [Judge Bork] be part of the progression of 200 years of history of every generation enhancing the right to privacy and reading more firmly into the Constitution protection for individual privacy? Or will he come down on the side of government intrusion? I am left without any doubt in my mind that he intellectually must come down for government intrusion and against expansion of individual rights.

During the hearings, Judge Bork expounded on his theory of “settled law”—of accepting past cases even though they were wrong. He offered to the committee new examples of cases with which he still disagreed, but which he would not overrule because they had become, in his view, settled law. Judge Bork did not include within his examples any of the privacy decisions. Accordingly, Judge Bork left the committee with the clear impression that he feels free to overrule any or all of the privacy decisions. And given his conclusion that the doctrine of substantive due process is “pernicious,” there is a substantial risk of overruling.

II. Civil Rights

Throughout his career, Judge Bork has consistently expressed harsh criticism of, and opposition to, Supreme Court decisions and legislation securing civil rights for all Americans. The committee believes that Judge Bork's unfailing criticism of landmark developments advancing civil rights, and his marked failure in numerous writings and speeches to suggest alternative methods of securing those advances, reflect a pronounced hostility to the fundamental role of the Supreme Court in guarding our civil rights.

The struggle to end race discrimination in America was one of the greatest moral tests faced by our Nation. In the 1960's, thoughtful men and women of all races and from all parts of the country came to realize that legislation was urgently needed to put an end to segregated lunch counters and “whites only” want ads.

In 1963 and 1964, while an associate professor at Yale Law School, Judge Bork vigorously and publicly opposed the legislation banning discrimination in employment and public accommodations that ultimately became

Page 733

Titles II and VII of the Civil Rights Act of 1964. In August 1963—the same month that Dr. Martin Luther King, Jr. lead [sic] the March on Washington to secure the passage of the Civil Rights Act—Judge Bork wrote in The New Republic that the principle underlying the proposed ban on discrimination in public accommodations was one of “unsurpassed ugliness.” (Civil Rights—A Challenge, August 31, 1963.) And in a March 1, 1964 article in the Chicago Tribune, Judge Bork opposed both the public accommodations and the employment provisions of the bill because they would—in his words—“compel association even where it is not desired.” (Against the Bill.) Judge Bork also asserted that there were “serious constitutional problems” with the public accommodations provision of the bill, a position unanimously rejected by the Supreme Court in Heart of Atlanta Motel, Inc. v. United States (1964).

At the time that Judge Bork's article in The New Republic was published, Nicholas deB. Katzenbach was Deputy Attorney General of the United States. Mr. Katzenbach later served as Attorney General from 1964—1966. During his testimony, Mr. Katzenbach eloquently described the impact of that article:

His 1963 article in The New Republic is one that I remember very well. It was then, and is now, absolutely inconceivable to me that a man of intelligence and perception and feeling could have opposed that legislation on the grounds that it deprived people of freedom of association.

It meant, and it could only have meant, that he valued the right of people in public situations to discriminate against blacks if that is what they chose to do. What kind of judgment does that demonstrate?

As Judge Bork admitted during the hearings, he did not publicly modify his views about the Civil Rights Act until his 1973 confirmation hearings to be Solicitor General. While the Committee does not question the sincerity of Judge Bork's recantation, we believe that his earlier strident and outspoken opposition to the public accommodations and employment provisions of the Civil Rights Act of 1964 may properly be taken into account in reaching our conclusion that the nominee lacks the sensitivity and commitment to assuring equal justice under law for all Americans that any Supreme Court Justice should possess.

Americans are rightly proud of the great strides our country has made in the past 40 years toward achieving our constitutional commitment to equal justice under law. The dramatic progress was eloquently described at the hearings by the Mayor of Atlanta, Andrew Young:

The success we enjoy—the cooperation between the races, the economic prosperity—has been built upon the foundation of civil rights and equal opportunity which the United States Supreme Court has fostered for three decades. Today, I can be Mayor of Atlanta. Yet just a few decades ago, as a college student, I could not stop for gas at many service stations, was told to use “separate” rest rooms and could not stay or be served in downtown hotels and restaurants. Just 25 years ago, black Americans were second-class citizens in the City of Atlanta. And white citizens were struggling with a stagnant economy.

Page 734

But today, many people recognize our city as “the city too busy to hate.” We are a city busy providing jobs, developing and protecting the environment, expanding our economy, educating our youth and opening the doors of opportunity for all our citizens.

After reviewing the totality of Judge Bork's record on civil rights, former Secretary of Transportation William T. Coleman, Jr. summarized the nominee's views as follows:

At almost every critical turning point in the civil rights movement as exemplified in these cases, Judge Bork has, as a public speaker and scholar, turned the wrong way.

In short, Judge Bork has consistently criticized legislation and Supreme Court decisions advancing civil rights for all Americans.

To be sure, Judge Bork was not the only opponent of the Civil Rights Act of 1964, and some of the decisions he criticized were not unanimous. But Judge Bork's criticism of and opposition to the broad number and variety of civil rights achievements discloses a troubling pattern. In the committee's view, this persistent pattern of criticism of civil rights advances, coupled with a conspicuous failure to suggest alternative methods for achieving these critical objectives, reflects a certain hostility on Judge Bork's part to the role of the courts in ensuring our civil rights.

In light of Judge Bork's demonstrated hostility to the fundamental role of the courts in protecting civil rights, the committee strongly believes that confirming Judge Bork would create an unacceptable risk that as a Supreme Court Justice, he would reopen debate on the country's proudest achievements in the area of civil rights and return our country to more troubled times.

III. The Equal Protection Clause and Gender Discrimination

The words of the Equal Protection Clause are grand but general: “nor shall any state deny to any person within its jurisdiction the equal protection of the laws.” One of the more troubling aspects of Judge Bork's philosophy of equality under the Constitution is his application of the general language of the Clause to discrimination on the basis of gender.

The committee explored two principal questions with Judge Bork on this issue. First, does he believe that the Equal Protection Clause applies to women? Second, by what standard should a court evaluate a challenge to a law that discriminates between men and women? The committee finds that Judge Bork's philosophy—as expressed both before and during the hearings—raises very serious concerns.

Prior to the hearings, Judge Bork engaged in a sustained critique of applying the Equal Protection Clause to women. He argued that to extend the Clause to women departs from the original intent of the Fourteenth Amendment, produces unprincipled and subjective decision-making and involves the courts in “enormously sensitive” and “highly political” matters.

Page 735

In 1971, for example, then-Professor Bork said that “cases of race discrimination aside, it is always a mistake for the court to try to construct substantive individual rights under the equal protection clause” and that “[t]he Supreme Court has no principled way of saying which non-racial inequalities are impermissible.”

Judge Bork insisted that the courts were not competent to decide which legislative attitudes toward women were legitimate judgments, and which were outmoded stereotypes:

There being no criteria available to the court, the identification of favored minorities will proceed according to current fads in sentimentality. This involves the judge in deciding which motives for legislation are respectable and which are not, a denial of the majority's right to choose its own rationales. (Emphasis added.)

During his testimony, Judge Bork publicly stated for the first time that he now believes that the Equal Protection Clause should be extended beyond race and ethnicity, and should apply to classifications based on gender. According to Judge Bork, “[e]verybody is covered—men, women, everybody.” Judge Bork explained that all forms of governmental classifications were unconstitutional unless they had a “reasonable basis.” He also said that he would reach the same results that the Supreme Court had reached in virtually all of its recent sex discrimination cases.

Judge Bork's rationale for his change in position was that the Equal Protection Clause should be interpreted according to evolving standards and social mores about the role of women:

As the culture changes and as the position of women in society changes, those distinctions which seemed reasonable now seemed outmoded stereotypes and they seem unreasonable and they get struck down. That is the way a reasonable basis test should be applied.

The central debate concerns the standard of equal protection that should apply in such cases. Importantly, that standard is a presumptive guide to courts to use in evaluating claims of gender-based discrimination. The pertinent question is thus whether Judge Bork's currently expressed position would adequately protect women from such discrimination. For several reasons, the committee believes that it would not.

Judge Bork's testimony on the Court's decision in Craig v. Boren (1976) provides particular insight into the weakness of his standard. In Craig, the Court struck down an Oklahoma statute that allowed women to obtain beer at age 18 but did not allow men to do so until they were 21. During his testimony, Judge Bork explained why he thought that the classification would be upheld using a reasonable basis test: The law, he said, “[p]robably is justified because they have statistics. [T]hey had evidence that there was a problem with young men drinking more than there was with young women drinking.” (Emphasis added.) According to Judge Bork, therefore, sex-based treatment should have been allowed because it rested upon a generalization supported by statistics.

Several witnesses testified about the serious problems associated with

Page 736

relying on statistical generalizations.

Prior to the hearings, Judge Bork said on several occasions—most recently, less than one month before his nomination—that the Equal Protection Clause of the Fourteenth Amendment should not be applied to women. At the hearings, Judge Bork announced for the first time that he would apply the Clause to women pursuant to a “reasonable basis” standard. The Committee agrees with Senator [Arlen] Specter's statement that there is

substantial doubt about Judge Bork's application of this fundamental legal principle where he has over the years disagreed with the scope of coverage and has a settled philosophy that constitutional rights do not exist unless specified or are within original intent.

IV. First Amendment

In 1971, while a Professor at Yale Law School, Judge Bork wrote his now famous Indiana Law Journal article entitled “Neutral Principles and Some First Amendment Problems.” In his analysis of the First Amendment, Judge Bork reached the following rather striking conclusion:

Constitutional protection should be accorded only to speech that is explicitly political. There is no basis for judicial intervention to protect any other forum of expression, be it scientific, literary or that variety of expression we call obscene or pornographic. Moreover, within that category of speech we ordinarily call political, these should be no constitutional obstruction to laws making criminal any speech that advocates forcible overthrow of the government or the violation of any law.

The committee explored each of the First Amendment issues raised by this statement and the manner in which Judge Bork has modified his First Amendment views.

During World War I and the Red Scare period that followed, the Supreme Court began to consider the conditions under which political speech that calls for law-breaking or violence could be prohibited. Although a majority of the Court at that time held that such speech could be suppressed even though there was no immediate threat of law-breaking or violence (see Abrams v. United States (1919) and Gitlow v. New York (1925)), Justices Holmes and Brandeis wrote stirring and historic dissents.

Their dissenting view—that the Constitution allows political speech to be stopped only when there is a “clear and present danger” of violence or law-breaking—began to be adopted by the Supreme Court in the 1950s, and a similar but somewhat more stringent test eventually was accepted by a unanimous Supreme Court in Brandenburg v. Ohio (1969). The Court held in Brandenburg that speech calling for violence or law-breaking could be forbidden only if such speech called for, and would probably produce, “imminent lawless action.” This standard, therefore, addresses the nature of the speech itself and the chance that, realistically, it will lead to any harm under the circumstances in which it was uttered. Prior to the hearings, Judge Bork made three separate attacks on the Brandenburg decision and its underlying doctrine.

Page 737

First, in his 1971 Indiana Law Journal article, then-Professor Bork removed from the protection of the First Amendment “any speech advocating the violation of law,” even if it presents no danger of violence or law-breaking.

Second, in a 1979 speech at the University of Michigan, he repeated that view and called Brandenburg a “fundamentally wrong interpretation of the First Amendment.”

Third, in a speech delivered to the Judge Advocate General's School two years after he became a judge, the nominee expressed his continuing displeasure with Brandenburg, which he defined as holding that “catatonic sentiments could not be inhibited or punished in any way.”

[I]n his testimony Judge Bork reiterated a distinction that he had suggested for the first time in an interview published immediately before the hearings (U.S. News and World Report, Sept. 14, 1987 at 22): “It seems to me that if the attempt [to advocate law violation] is by a person or a group to challenge the constitutionality of a law, then I do not see how it can be made illegal to advocate that attempt.”

Judge Bork's “test of constitutionality” exception is of more academic interest than real-world use. Dr. Martin Luther King, for example, did not advocate illegal sit-ins and other forms of civil disobedience in order to stimulate court tests. He advocated them to prick the conscience of the nation—to dramatize the injustice of segregation laws that were immoral but not necessarily unconstitutional. In sum, Judge Bork's newly formulated exception is not simply new and uncertain, but is also a technical distinction with little concrete application.

A major concern voiced by several members of the committee (particularly by Senator Specter)—and voiced generally about those issues that Judge Bork accepted as “settled law”—was how he would apply doctrines of which he expressly disapproved in new cases with new facts.

[T]here is great concern that in new cases, Judge Bork would find reasons not to apply the rules from decisions he dislikes but says are too “settled” to overturn completely. In other words, while he might not try to reverse those decisions, he could find them irrelevant or apply them in such a narrow way that their importance and effect would be greatly diminished.

Political dissidents who make statements that flirt with the edges of the law rarely make very appealing parties in a lawsuit. It is for precisely that reason that the basic values of our political system are seriously threatened in cases that involve the sometimes incendiary and generally unpopular speech of such dissidents. Our system is built upon the precept that any political speech, short of that which will produce imminent violence, furthers public understanding and national progress—sometimes, by showing the virtues of the existing system.

And sometimes dissident speech becomes the precursor of political change and ultimately, a new national consensus.

At the hearings, Judge Bork drew back substantially from his 1985

Page 738

remarks. He explained that “if I was starting over again, I might sit down and draw a line that did not cover some things that are now covered,” but stated that he would “gladly” accept the Supreme Court's First Amendment decisions protecting non-political expression. Referring to the well-established principle that speech is protected regardless of its lack of relationship to the political process, Judge Bork said: “That is what the law is, and I accept that law.”

The committee finds that Judge Bork's testimony was somewhat reassuring on the question of First Amendment protection for non-political speech. While his testimony was welcome, however, it “still must be read,” in Senator [Patrick J.] Leahy's words, “against the background of Judge Bork's prior statements on the issue.”

V. Executive Power

The Framers clearly recognized that unchecked power in the Executive Branch represents the greatest threat to individual liberty. The genius of the Constitution is perhaps most apparent in the separation of powers among the branches of government and in the system of checks and balances, carefully designed to ensure that no single branch would possess unlimited authority in any area.

In extensive writings and congressional testimony over the course of his professional career, Judge Bork has expressed a broad, almost limitless, view of presidential power, particularly with respect to the conduct of foreign affairs, and a correspondingly narrow view of Congress's ability to restrict abuses of that power. The committee believes that, when viewed as a whole, Judge Bork's views on the scope of executive power place him well outside of the mainstream of legal thought, and run directly contrary to the limits on executive power intended by the Framers.

The War Powers Act places certain limitations on the President's authority to send and maintain American military forces in hostile circumstances without congressional approval. In an article in the Wall Street Journal, Judge Bork stated that the War Powers Act “is probably unconstitutional and certainly unworkable.” (“Reforming Foreign Intelligence,” March 9, 1978, at 24.) During his appearance before the committee, Judge Bork adhered to this view, suggesting that both the Act's legislative veto provision, and its provisions limiting the time during which troops may be introduced into a hostile situation without congressional approval, may be unconstitutional.

Judge Bork has also taken the position that when the United States is engaged in an undeclared conflict against one nation, Congress cannot constitutionally prohibit a President from expanding that conflict by commencing hostilities against another country.

Judge Bork's suggestion that the President has the inherent power to ignore such limitations is profoundly troubling.

Judge Bork has expressed an exceedingly narrow view of Congress's right to participate in or restrict intelligence activities, even when such

Page 739

activities are conducted in the United States against U.S. residents.

Reasonable people may differ about whether particular intelligence activities are appropriate or inappropriate. But under our constitutional system of checks and balances, Congress simply must have the power to oversee and ultimately to control the ability of the Executive Branch to conduct intelligence operations. In light of the Framers' great concern about the risks presented by concentrated power in the Executive Branch, the committee finds Judge Bork's rejection of congressional limitations on such power particularly disturbing.

In November 1973, in the aftermath of the firing of Watergate Special Prosecutor Archibald Cox, a number of measures were introduced in Congress to provide for establishment of an independent special prosecutor when allegations were made of wrongdoing by high-level Administration officials. Judge Bork testified [at the time] that that legislation was unconstitutional.

Judge Bork's view that court-appointed independent counsels are unconstitutional is troubling because of his adherence to a rigid version of the separation of powers, without any regard for the practical accommodations that are inherent in our system of checks and balances. At rare times, the appearance of possible corruption within the upper levels of the executive branch threatens public confidence in government itself. In some instances, the impartial investigation by government officials of the executive branch, especially of those individuals who are politically or personally close to the President, seems impossible. Following the national trauma of Watergate, Congress faced up to that problem and devised a balanced legislative solution—which has twice been reauthorized—that has significantly helped to restore public confidence. The series of constitutional arguments devised by Judge Bork against such incipient special prosecutor statutes is consistent with his willingness in other contexts to restrict Congressional power, and to enhance and protect the autonomy of the President.

The committee believes that Judge Bork's views on the scope of presidential authority are troubling, not merely because those views would impose unprecedented limitations on Congress's ability to curb abuses of presidential power, but because his views in this area are the antithesis of judicial restraint. In the area of executive power, Judge Bork shows little deference to duly enacted legislation and little regard for either the text of the Constitution itself or for the principle of checks and balances that resonates throughout the document.

VI. Watergate

In the committee's view, perhaps the most significant aspect regarding the firing of the Watergate Special Prosecutor is Judge Bork's immediate and continuing perception that an effective Watergate investigation could be run out of the same Department of Justice that had just carried out the task of firing Mr. Cox for seeking to run such an

Page 740

investigation. The degree of deference to executive authority and executive representations required to hold that perception is astonishing in the face of the abuses of executive authority represented by President Nixon's actions at the time.

Institutionalized checks on unrestrained power constitute the very life of our Constitution and are an indispensable ingredient of our freedom. The great deference to executive power shown by the nominee in the actions related here, as well as in many of his other statements and judicial opinions, seems inappropriate for a member of a Supreme Court, which is responsible for preserving the constitutional system of checks and balances.

VII. Antitrust

Judge Bork has called antitrust “a particularly instructive microcosm” of his over-all judicial, social and political philosophy. Despite his reputation as a practitioner of judicial restraint, he is, in the words of Robert Pitofsky, a respected antitrust scholar and Dean of the Georgetown University Law Center, “an activist of the right” in the antitrust field, “ready and willing to substitute his views for legislative history and precedent in order to achieve his ideological goals; and even when examined by comparison to other conservative critics of antitrust enforcement, his views are extreme.” Judge Bork's appointment to the Supreme Court is likely to result in “antitrust changes of truly tidal proportions” that, in the words of the editor of the Antitrust Law and Economics Review (a professional journal for antitrust economists), “are likely to do great damage to the country's domestic and thus its international competitiveness well into the 21st century.” (Letter to Hon. Edward Kennedy, August 13, 1987.)

Judge Bork made his early reputation as an antitrust scholar. He first attracted attention in the 1960s with several important articles arguing that there was too much antitrust enforcement. (See, e.g., “The Crisis in Antitrust,” Fortune, December, 1963.) He expanded his analysis into an influential book, The Antitrust Paradox, published in 1978, and he has continued to write and lecture on the subject while serving on the D.C. Circuit Court of Appeals. While Judge Bork has, over the past few years, tried to distance himself from earlier views in several other areas of the law, he still is closely associated with his long-held views on antitrust.

The central premise of Judge Bork's antitrust philosophy is that in enacting the federal antitrust laws, Congress sought to promote only one purpose—industrial or “allocation” efficiency, which he has labeled “consumer welfare.” In fact, he has repeatedly called the promotion of economic efficiency the only legitimate goal of antitrust.

Judge Bork has criticized most of the landmark antitrust Supreme Court decisions, including Brown Shoe v. United States (1962) (horizontal and vertical mergers); FTC v. Procter & Gamble (1967) (conglomerate mergers); Dr. Miles Medical Co. v. John D. Park & Sons Co. (1911) (per se illegality of resale price maintenance); and Standard Oil Co. of California v.

Page 741

United States (1949) (illegality of exclusive dealing arrangements). In fact, he has called the entire body of Supreme Court precedent in the antitrust field “mindless law.”

In the antitrust arena, Judge Bork has called for unprecedented judicial activism, proposing that the courts ignore almost 100 years of judicial precedents and congressional enactments. His views are particularly relevant to his constitutional jurisprudence because he has analogized the basic antitrust statutes to the Constitution: “[T]he antitrust laws are so open-textured, leave so much to be filled in by the judiciary, that the Court plays in antitrust almost as unconstrained a role as it does in constitutional law.” (The Antitrust Paradox at 409.) Judge Bork uses the failure of the courts and the Congress to consider or understand economics to reject as “mindless law” cases and statutes that expand application of the antitrust laws beyond the narrow range of practices that he believes should be prohibited. His undisguised distrust of and disregard for congressional enactments cannot be reconciled with his professed philosophy of judicial deference to the will of Congress. This inconsistency is what Chairman Biden labeled “the Bork paradox.”

In the antitrust field, Judge Bork interprets congressional will selectively to suit his own agenda. He not only considers his interpretation of the original intent of the antitrust laws to be the only “correct” one, but he also denounces as unconstitutionally vague any conclusions to the contrary.

Judge Bork's antitrust views, together with the “Bork Paradox”—the willingness of Judge Bork to engage in judicial activism despite his supposed adherence to a philosophy of judicial restraint—are yet further reasons why the committee concludes that his nomination to the Supreme Court should be rejected.

X. Judge Bork's So-Called “Confirmation Conversion:” The Weight the Senate Must Give to Newly Announced Positions

As Senator Leahy has said, Judge Bork throughout the hearings told the committee many things “that he has never told anyone else before—at least not in public—about his approach to fundamental constitutional issues.” Much has been made of this so-called “confirmation conversion.”

In the committee's view, the issue is not whether Judge Bork was candid in those aspects of his sworn testimony that seem to contradict many of his previously announced positions. In Senator Specter's words, “it is not a matter of questioning his credibility or integrity, or his sincerity in insisting that he will not be disgraced in history by acting contrary to his sworn testimony.” Rather, “the real issue is what weight the Senate should give to these newly expressed views,” in light of Judge Bork's “judicial disposition in applying principles of law which he has so long decried.”

The Committee has concluded that Judge Bork's newly announced

Page 742

positions are not likely fully to outweigh his deeply considered and long-held views. The novelist William Styron cut to the heart of this matter when he said that the Senate must decide whether Judge Bork's new positions reflect “a matter not of passing opinion but of conviction and faith.” “Measured against this standard, Judge Bork's testimony mitigates some of his previous statements, but does not erase them from the record which the Senate must consider.”

There were three principal changes in positions that Judge Bork announced for the first time, at least publicly, at the hearings. These related to: (1) the Equal Protection Clause of the Fourteenth Amendment and gender discrimination, (2) dissident political speech under the First Amendment; and (3) First Amendment protection for artistic expression.

At his confirmation hearings, Judge Bork for the first time said that he would apply the Equal Protection Clause to women pursuant to a “reasonable basis” standard. As discussed in Part Three, Section III, this position contrasts markedly with Judge Bork's historical approach to this issue. The committee agrees with Senator Specter's statement that there is

substantial doubt about Judge Bork's application of this fundamental legal principle where he has over the years disagreed with the scope of coverage and has a settled philosophy that constitutional rights do not exist unless specified or are within original intent.

On the question of dissident political speech—that is, speech that advocates the violation of law—Judge Bork also announced a dramatic change in position. As discussed in Part Three, Judge Bork had, prior to the hearings, consistently rejected the “clear and present danger” test even though a unanimous Supreme Court had accepted it for years. During the hearings, Judge Bork took inconsistent positions on this issue, but ultimately said that he accepted the Supreme Court's formulation as “settled law.” Again, the statements of Senators Specter and Leahy are particularly cogent. Said Senator Specter:

I have substantial doubt about Judge Bork's application of [the clear and present danger] standard to future cases involving different fact situations where he retains his deep-seated philosophical objections.

Senator Leahy observed:

[I]n the end, I am not persuaded that Justice Bork would be an energetic and effective guardian of this most basic of our constitutional freedoms. Belated acceptance of these well-established principles does not match what we expect of a Supreme Court Justice.

The third principal area in which Judge Bork modified his views is the area of artistic expression. Prior to the hearings, Judge Bork had expanded his concept of protected speech under the First Amendment from his original and somewhat radical position set forth in his Indiana Law Journal article. He had still seemed to maintain, however, that speech must relate in some way to the political process. By the time of his testimony, Judge Bork accepted the proposition that speech should be

Page 743

protected regardless of its lack of relationship to the political process. He accepted, in other words, “a consensus that has existed for decades.” As Senator Leahy concluded:

While this testimony was welcome, it still must be read against the background of Judge Bork's prior statements on the issue. The over-all picture presented by Judge Bork's free speech decisions and his writings on the subject belies the extravagant claim made by some of the proponents of this nomination that he is 'at the forefront' of modern free speech jurisprudence. At best he is somewhere in the pack and running to catch up.

Any discussion of the so-called “confirmation conversion” would not be complete without mention of the principal area in which Judge Bork did not change his views. On the related questions of liberty, unenumerated rights and the right to privacy, Judge Bork's views have not changed in any substantial degree. He still challenges the role of the Supreme Court in defining liberty; he still challenges the legitimacy of Griswold and its progeny; and he still maintains that the people of the nation have only those rights that are specified in the text of the Constitution.

Conclusion

The hearings before this committee on the nomination of Robert H. Bork have been about what the Framers called “free government.” And free government, as one witness put it, “is a complicated blend of principle and preference.” Through these hearings millions of Americans have been reminded that free government

"empowers the majority and makes it the touchstone of legitimacy, but at the same time it protects individuals, minorities, and powerless groups in our society against laws and practices that are sometimes demanded by a majority but which might be deeply regretted by the people at more reflective moments."

Two hundred years ago, the founders of this great nation created a Constitution for their heirs and descendants, enabling them continually to refine the balance between principle and preference. Our Constitution has scarcely more than 5,000 words. But those words have enabled this Nation to flourish for two centuries, and they now lead us into a third.

At the same time, the Constitution's words alone have never been deemed sufficient to gain its ends. As John Randolph reminded the new nation, “[y]ou may cover whole skins of parchment with limitations, but power alone can limit power.” Faithful to this mandate, the Supreme Court has been the ultimate bulwark of protection when the majority has attempted to impose its preference upon the fundamental principles of the Constitution—when it has attempted, in other words, to channel the force of government to override the rights of the individual. In the words of former Congresswoman Barbara Jordan, “[t]he Supreme Court will throw out a lifeline when the legislators and the governors and everybody else refuse[s] to do so.”

Judge Bork's constitutional philosophy places him at odds with this history and tradition.

Page 744

It is often stated that America's strength lies in being a government of laws and not of men. For such a government to endure, interpretation of our most fundamental law must comprehend the lives of the people and accord with their deepest values. The Supreme Court sets the terms of that interpretation, and its members must view the forum as far more than what the nominee has termed an “intellectual feast.” Justices of the Supreme Court hold the solemn charge to embody justice, and to unleash or resolve the aspirations and grievances of a nation. Nor can constitutional interpretation be based simply on an “understand[ing of] constitutional governance,” as Judge Bork also has suggested. To update Justice Holmes' reminder many decades ago, the words of the Constitution

have called into being a life the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken [two] centur[ies] and cost their successors much sweat and blood to prove that they created a nation. The case[s] before us must be considered in the light of our whole experience and not merely in that of what was said [two] hundred years ago. (Missouri v. Holland, 1920.)

This broad context for the justices' role frames, in turn, the question for this committee. That question was put well by Secretary Coleman:

In this day and age, can we really take the risk of nominating to the Supreme Court a man who fails to recognize the fundamental rights of privacy and substantive liberty which are already imbedded in the very fiber of our Constitution [?]

The nation cannot take this risk. The positions adopted by Judge Bork at critical moments of decision bespeak a perilous inclination for one who would guide our nation's future. The constitutional problems of the next generation will take new and unexpected forms, but they will juxtapose the same values of liberty and sovereignty, of preference and principle, that antedate the birth of our Constitution. Judge Bork's confined vision of the Constitution and of the task of judging itself carries too great a risk of disservice to future national needs and distortion of age-old constitutional commitments to permit his confirmation.

[T]he Supreme Court acts to define our lasting values as a people. In exercising powers of advice and consent for Justices of the Supreme Court, the Senate must speak for generations yet unborn, whose lives will be shaped by the fundamental principles that those Justices enunciate. As we face that task here today, we keep faith with our forefathers' bold experiment by reaffirming for our time their promise that liberty would be the American birthright for all time.




Document Citation
"Bork Confirmation Battle." CQ Electronic Library, CQ Historic Documents Series Online Edition, hsdc87-0001161273. Originally published in Historic Documents of 1987 (Washington: CQ Press, 1988). http://library.cqpress.com/historicdocuments/hsdc87-0001161273 (accessed April 13, 2005).
Document ID: hsdc87-0001161273
Document URL: http://library.cqpress.com/historicdocuments/hsdc87-0001161273
© 1988, 2005 • All Rights Reserved • CQ Press, a Division of Congressional Quarterly Inc.
1255 22nd Street N.W. • Washington, D.C. 20037 • 202-729-1800
General Terms of Service | Copyright Notice and Takedown Policy | Masthead