Bork Confirmation Battle
A historic document from September 15, October 9 and 13, 1987
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
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.
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
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
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
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
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
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
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
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
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
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
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
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.
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
For the first time since the American Bar Association's
(ABA) Standing Committee on Federal Judiciary began evaluating Supreme
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.
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.
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
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
lawmakers are the Congress of the United States
enacting a statute or those who ratified our Constitution and its
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
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
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,
'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
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
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
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
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
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
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
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
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
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
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.
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
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.
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
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
Several witnesses testified about the serious problems associated with
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
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.
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
[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
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
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
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
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
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.
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.
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
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
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
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
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
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
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.
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.
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
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.
"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